Advisory Opinions - Professor Vladeck Talks Progressive Legal Philosophy

Episode Date: April 26, 2022

Sarah and David talk about the First Amendment, 14th Amendment, Puerto Rico, and progressive legal philosophy. They start with a big Supreme Court case that makes David fall asleep, move on to Clarence Thomas' musings, and then finish with an enlightening and interesting conversation with Steve Vladeck, law professor at the University of Texas, about the shadow docket, Kagan originalism, and much, much more. Oh, and David ends with a movie recommendation. Since his pop culture recommendations are infallible, you'll want to listen to the end.   Show Notes: -City of Austin v. Reagan National Advertising of Austin, LLC -Hill v. Colorado -United States v. Vaello Madero -New York Times: “Roberts Has Lost Control of the Supreme Court” -The Unbearable Weight of Massive Talent trailer Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And before we start, I'm supposed to ask you, Sarah, where are you?

I thought I'd give you a little quiz, David. Okay. The year is 1890 and I am in the Wall Street of the South, the second richest city per capita in the United States, and second only to Ellis Island as an immigration port. Where am I? Okay. So second only to Ellis Island as an immigration port. It's in the south. And it's not going to be a huge city. Otherwise, the answer would be obvious. Hmm. Galveston.

You are correct. I'm so impressed with myself. I can't even tell you. I'm pretty impressed. Listeners, he did not have any clue where I was. Boy, we can just stop the podcast right now. That's it. Congrats. You win. Yeah. All right. So broadcasting, podcasting, sorry, from Galveston. Sarah and I have a great podcast for you. We're going to talk about a couple of Supreme Court cases, one involving advertising in the First Amendment, another one involving Puerto Rico with a fascinating Justice Thomas concurrence, a blistering Justice Gorsuch concurrence. a blistering Justice Gorsuch concurrence. And then we're going to have a great conversation with UT, the other UT, UT Austin, law professor Steve Vladek about emergency docket, more progressive jurisprudential or more progressive philosophies of jurisprudence, just lots of stuff.

So it's a great conversation, and we're going to get to that in the last half of the podcast. But Sarah, should we start with Puerto Rico, or should we start with billboards? Billboards! All right, billboards. So this was an interesting case. We talked about it before. And honestly, as I was reading through the opinions, I can't remember how I thought this should have come out because I remember talking about it. I know.

Isn't that funny? Yeah. So let's just give a little refresh here. Yes. In some ways, this is a really simple case, but in other ways, it got more complicated. Although, interestingly, in the opinion, it's really just the simple version. So the simple version is this. What determines whether something is a content-based restriction? Is it anytime you have to read the speech, then you know it's content-based? Or is there something else we're

looking for? So in the city of Austin, there are billboards. And if you have a billboard at your business, no problem. That is an on-premises billboard, and you can advertise your business. But if you have an off-premises billboard, then there's no more off-premises billboards being built. And the current ones were grandfathered in that they couldn't change their off-premises billboard. They could change the message on it, but they couldn't digitize the signs. And so some off-premise billboard holders sued, claiming that making this on-premise

versus off-premise distinction violated the First Amendment because it wasn't content neutral. It was viewpoint discrimination, and it should be reviewed under strict scrutiny, meaning the state would have to have the narrowest restriction possible and a compelling reason to do it. And so around and around we went, David. And so around and around we went, David. And in the end, the Supreme Court decided that this was not content-based. It was viewpoint-neutral. Well, actually, what they said was it's not strict scrutiny.

Right. Facially content-neutral, yeah. Yeah, facially content-neutral, though perhaps in this case it's not. And that can all be worked out at the lower court. But David, the real discussion was still about whether there's a bright line rule or a common sense rule. Interesting concurrence by Justice Breyer saying, we don't need a rule at all. It should just be common sense. Just decide as a judge, do you think this is content neutral or not? Whereas the dissenters, I thought, I'll be interested to see what you think, David. I thought made a pretty good case for why you want a bright line rule. And why in this case, because you do have to read the sign to know whether, for instance, you are advertising for that business, or you have a

message that says, hey, the business down the road is hosting a charity event and you should go to it. For instance, if you have a billboard at your business, that billboard can say, El Arroyo is a pro-life restaurant, but it can't say, choose life. And the majority is like, I mean, sorry, the dissent is like, well, that's why you need the bright line rule. Because you're saying this is just common sense, but I don't think it's common sense. So, David, what did you think of the majority? What did you think of the concurrences?

What did you think of the dissents? Yeah, really good questions. And also, what did I think of the alignment? This was a really interesting alignment interesting alignment so you have sotomayor delivered the opinion roberts briar kagan kavanaugh joined briar filed his own concurrence then alito concurred in part and dissented in part and then thomas gorsuch and barrett dissented. So all over the place. So this is one of those situations where I'll just be completely honest here. I read the majority. I found it compelling. I read the dissent. I found it compelling. By the way, David, I do remember a little bit what you felt about this case. You thought that it was dumb and didn't care. And I told you I was going to make you care

about billboards. You remember that? That's exactly right. And I still think I didn't care. And I think that as I read both majority and the dissent, I feel like I don't know. I don't feel strongly either way. I can't be made to care. Wrong, David. Wrong. I know. I know. So here's, let me just say this. The strength of the Sotomayor majority is essentially this, that look, you're not saying, what the city of Austin is not saying is that signs that deal with particular subject matter are going to have one set of rules and signs that deal with another kind of subject matter have another set of rules, sort of your absolute classic content-based restrictions. The subject matter of the sign doesn't actually really mean much at all. It's the location of the sign. So this is a locational restriction,

not so much a subject matter restriction. And therefore, this isn't a content-based restriction. It's on-premise versus off-premise. The dissent turns on and says, wait a minute, hold on. You still have to sit there and literally read and understand the content of the sign and analyze the content of the sign to basically discover whether this is encompassed by the city code. And if you're looking at the content of a sign, you're looking at the content of a sign, and that's a content-based restriction, and so therefore strict scrutiny. I guess I left this wondering, it's one of those issues where I think, I didn't really even understand why the Supreme Court felt the necessity to weigh in on this. in the sense that when I think classically of a content-based restriction, to understand what a content-based restriction is, you're generally dealing with differences and distinctions based

on subject matter. And here's a sign, we're going to have one set of regulations for religious signs, we're going to have one set of regulations for political signs, we're going to have one set of regulations for political signs. We're going to have one set of regulations for commercial signs, one set of regulations for event signs. That's all content. You can understand that they're targeting different kinds of subject matter. This, which seems more like classic zoning, it's designed to sort of phase off the off-premise sign world in a kind of really gentle way, if you push me, I'm with the majority and still not really emotionally connected to it in any way. You're wrong on nearly every facet here. So let's run through why you're wrong. Okay. A, you're wrong not to care because having to define when something is going to be considered

content-based will become very important at some point. So just the fact that the court is wading into this means that it's important. Two, the answer here to me was Justice Alito's partial concurrence, partial dissent, because as I mentioned, and I think this was where I thought the case would come down. Well, turns out I got one vote and no more, so I was pretty wrong, but still I got one vote. And that was that they don't need to get to the content based part because this is really about whether you can digitize signs and that was justice alito's quite short point here but for a facial challenge in the first amendment over breadth uh field a law restricting speech is unconstitutional if a substantial number of its applications

are unconstitutional judged in relation to the statute's plainly legitimate sweep. But in this case, the vast majority of the plaintiff's billboards, if not all of them, were these off-premise billboards that they just wanted to digitize. Well, there's no question that digitizing versus not digitizing is constitutional and content neutral. The court didn't need to get to those signs that are on premises but want to be not commercial. David, I also think you're wrong about the content not being on a specific topic, because what this did is privilege commercial speech above non-commercial speech, which is bizarre and on its head compared to the purpose of the First Amendment.

So as long as you're saying, come eat at El Arroyo, that's going to have the highest amount of protection in the purpose of the First Amendment. So as long as you're saying, come eat at El Arroyo, that's going to have the highest amount of protection in the city of Austin. But if you're saying anything else on that El Arroyo sign, not protected. I just think that's bizarre. But David, here's the main thing of why you should care. This case wasn't about billboards at all.

And you're wondering why the Supreme Court took it. Let me tell you about a case called Hill versus Colorado from 2000. I actually bet you know this case pretty well. Yes. Okay. I'm just going to read the summary here. A Colorado statute makes it unlawful for any person within 100 feet of a health care facility's interest to knowingly approach within eight feet of another person without that person's consent in order to pass a leaflet, handbill, etc. This is the 15-foot abortion clinic buffer zone rule. Right. The question was, does Colorado's statutory requirement that speakers obtain consent from people within 100 feet of a health care facility entrance before speaking, displaying, Thomas in the dissent, with the majority saying the statute is not a regulation of speech. It is a regulation of the places where some speech may

occur. This was like lurking in the background of this billboard case all over the place. And so, David, let me read you from Thomas's dissent. In this case, the court nevertheless holds that the off-premises restriction is content neutral because it prescribes a sufficiently broad category of communicative content and therefore does not target specific topic or subject matter. Just what you said, David. This misinterprets a clear rule that the court had for content-based restrictions and replaces it with an incoherent and malleable standard i mean saying that something's just going to be a common sense standard is about as incoherent malleable as it can be in doing so

the majority's reasoning is reminiscent of this court's erroneous decision in hill v colorado which upheld a blatantly content-based prohibition on counseling near abortion clinics on the ground that it discriminated against an extremely broad category of communications. What say you, David? Nope. But hold on. Before I get the nope, let me say, I think, aren't you kind of agreeing with me? Because you went to the Alito concurrence, which was basically like,

isn't this case kind of a nothing burger about whether or not we can digitize signs? So... Yes. Okay, so I'm going to unilaterally declare victory in the great nothing burger debate of 2022. No, but not that this decision is a nothing burger because they didn't decide it on alito's grounds

that's what i thought they would do that's what i thought they should do that's what alito thought they should do but the fact that they then went ahead and created a whole new rule for whether something's content-based means that it's not a nothing burger and justice alito agrees with the hill case the hill case was transparently, absolutely targeted. It was viewpoint content targeted through a thinly disguised veneer of a location-based speech restriction. So the Hill case had viewpoint discrimination, content discrimination leaking from every pore.

content discrimination leaking from every pore. And if you had a fact pattern here where what was going on was a bunch of Austin businesses had began to, say, choose life, and the city of Austin, in response to complaints about choose life, then implements this quote-unquote neutral or content-neutral regulation, you'd have a different fact pattern. Because when it comes to these First Amendment inquiries, intent matters. Intent matters. I mean, this is the foundation of, for example, a retaliation claim on the basis of the First Amendment retaliation. These are issues where intent men withheld the viewpoint neutrality. I mean, the viewpoint discrimination was all over the place, and the court just invented this fiction of neutrality around it. Whereas here

with the city of Austin, what appears to be going on with Austin is you've just got classic commercial zoning, a classic commercial speech zoning issue, nothing within shouting distance of Hill. So yeah, I get what they're saying, but what was the word that was used, reminiscent? but what was the word, the word that was used, reminiscent? The word reminiscent is doing a lot of work in that dissent. But again, I don't feel strongly about it. If you talk to me for 10 more minutes, you might could take me over to 50.1% thinking that Thomas is right, but I'm still not in the mode of feeling very strongly about this case. And listeners, tell me I'm wrong. Tell me I am wrong, but I'm just not there, Sarah. Okay, then let's go to Puerto Rico. All right. So Puerto Rico, this was a case involving the availability of Social Security Supplemental Income, SSI, available. Are SSI benefits or should SSI benefits be made available to residents of Puerto Rico?

residents of Puerto Rico. Puerto Rico is not a state. It's a territory. And so there was a question as to whether the applicant in this case had a right as an American citizen to receive benefits under the SSI program. This case was 8-1. It was 8-1, and with a very short majority opinion delivered by Kavanaugh, a dissenting opinion delivered by Sotomayor, and two interesting concurrences filed by Justice Thomas and Justice Gorsuch. Basically, the majority opinion was pretty simple. look, the majority opinion was pretty simple. Constitution does not require Congress to extend SSI benefits. It was a rational basis review that was applied here that there are some things that you some benefits you got from being a Puerto Rican resident. Like you don't have a lot of tax obligations that you have if you're a resident of the 50 states as opposed to territory. And so if you're not going to have some of the benefit, I mean, some of the

obligations, you're not going to be entitled all of the benefits of citizenship in the 50 states if you're in Puerto Rico. Rational basis, that's quite rational. It's rational to allow folks to exempt themselves from some obligations and if they're not going to have the same obligations they're not necessarily going to have the same benefits done oak case over super short opinion eight one but justice thomas weighed in sarah with basically a miniature version of a law review article. Do you want to? Yeah, and in fact, it was so law review-y that I was like, wait, how is this connected back?

And for that matter, to some extent, the Gorsuch one as well, where they just like take this opportunity because like, you know, there's not a whole lot of opportunities to wade into these territory-esque cases. Basically, both of them wish they were bigger cases. And I don't mean bigger meaning more important, although they mean that too. But bigger meaning broader, sweeping ability to delve into some of the fun legal issues. Justice Gorsuch, of course, no surprise based on the oral argument, very much wants to state for the record that the

insular cases are no longer good law. And that unfortunately, neither party asked them to overturn the insular cases, but he's here to overturn the insular cases. Right, right. And that was, I thought that concurrence was compelling and interesting. It reminds me of, what was it the oh gosh please tell me i don't get this wrong um using the occasion of the travel ban case to overturn koramatsu yeah although the difference was that is i mean the chief justice had to like kind of shoehorn it in there and be like and this overturns koramatsu even though it didn't really need to um but he was like taking this moment to like very proudly be the one to overturn koromatsu even though it didn't really need to um but he was like taking this moment to like

very proudly be the one to overturn koromatsu uh here of course it's not the majority decision to overturn the insular cases and it's not up at all so this is straight dicta on the insular cases yeah righteous dicta righteous yeah but nobody thought the insular cases were good law i this is like i this is going to sound judgier than i mean it but you're not brave overturning koromatsu in 2018 or saying you don't think the insular cases are good law in 2022 it shouldn't be done but like you know our applause should be something less than uproarious you couldn't possibly being accusing justice gorsuch of virtue signaling look it actually is something more important than virtue signaling because it is good to have a statement um that the insular cases are not good

law it's just that we all knew that they weren't good law. It's still good to have it in print. So it's not virtue signaling in that sense. Yeah. But I mean, it's not brave. It's not Justice Harlan level. Right. No, no, no, no. I know. Although Harlan does figure in the dissent in Gorsuch's concurrence in a very Harlany way, right?

Very true. Okay. But we need to get to Justice Thomas. Yeah. This is interesting because I'm reading along and I had not, Sarah, I had not checked Twitter beforehand. So I'm reading and by sentence two, not just one eyebrow is raised, both eyebrows are raised. So sentence one is I join the opinion of the court. raised, both eyebrows are raised. So sentence one is I join the opinion of the court. Sentence two,

I write separately to address the premise that the due process clause of the Fifth Amendment contains an equal protection component whose substance is precisely the same as the equal protection clause of the 14th Amendment. Okay, this ought to be interesting. Although I've joined the court in applying this doctrine, I now doubt whether it comports with the original meaning of the Constitution, firmer ground for prohibiting the federal government from discriminating on the basis of race, at least with respect to civil rights, may well be found in the 14th Amendment's Citizenship Clause. So essentially what Thomas is doing here, and as we'll discuss a little bit later in our interview with Steve Ladeck, is saying he's getting back on one of his hobby horses that is essentially saying that a lot of American jurisprudence has been a lot of American sort of the jurisprudence that has been used to extend the blessings of liberty, so to speak, to broader classes of Americans has been rooted in the wrong place. And Justice Thomas has been kind of on the warpath saying, wait a minute, look, I might get to the same place as you, but I'm coming through a different gate.

I might get to the same place as you, but I'm coming through a different gate. And so Section 1 of the 14th Amendment says, All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. And then it goes on to say, No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law. And what he's saying is that this section one, all persons born or naturalized in the United States and subject to the jurisdiction thereof

are citizens of the United States and the state wherein they reside, carries with it implications of equality. Sarah, is that a fair way to summarize it? Yes. And so therefore he says that the school desegregation case, and this is just fascinating that he did this. So he goes on to say that essentially the school desegregation case so there was a there were was brown versus board of education that was um desegregated schools at the federal at the state level um that that and there was a and also a case called bowling v sharp that confronted the

constitutionally of government imposed segregation in dc's public schools and because the segregation was attributable to congress rather than state action the 14th amendment's equal protection clause did not Bolling instead read an equal protection principle into the Fifth Amendment, which states no person shall be deprived of life, liberty, or property without due process of law. And Thomas says that was just made up. That was just made up. What you actually need to do is apply the Citizenship Clause. Okay.

Can we translate to everyone kind of what's going on here? Yeah. Okay. So first of all, and we haven't really delved into this on our podcast, David, but there are people out there who very much are in favor of school desegregation, but think that Brown v. Board and Bowling v. Sharp have legal infirmities in terms of how they were decided and how they were written.

But it doesn't really matter because everyone's happy with the outcome and nobody wants to be the person who's against school desegregation. And so it just doesn't get a lot of attention. And here comes Justice Thomas,

hold my beer on Bowling V Sharp. And look, in some respects, it might be because he's the only person who can really raise at a high level that Bowling V Sharp might not, the outcome might be good, but the reasoning might be bad and it might have all these unintended consequences. The problem for me, David, is even if I take his law review-esque point that equal protection is not built into the Fifth Amendment, either textually or substantively or anything else, I don't think there's been a lot of adverse consequences to that Bowling v. Sharp problem, if it is a problem. Yeah, no. And the interesting thing is, for instance, by the way, the conversation we're going to have with Steve Vladek about getting rid of the privileges and immunities clause and reading that into the 14th Amendment, that has created a bunch of problems. Right, right. And the interesting thing is here is that he says the textual source of the obligation, this sort of obligation of legal equality, the textual source

resides in the 14th Amendment Citizenship Clause. And it says that clause provides all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Wait, that's the textual source of an equal protection obligation? Textual source? Interesting. And then he says, as I sketch out briefly below, considerable historical evidence suggests that the citizenship clause was adopted against a longstanding political and legal tradition that closely associated the status of citizenship with the entitlement to legal equality. OK, OK. I mean, I can see it. I can I can see it. I can't see it, though, super textually. I can see it from—

Well, again, David, unlike the privileges and immunities clause debate, I'm not sure I see why it matters too terribly much. Now, obviously, he's putting it in the context of this Puerto Rico case where what the citizenship clause means matters more than in some other cases. But if his point is bowling V sharp turns out the same way, but with a different clause. OK. Yeah. Yeah. It was just it was very interesting. And Justice Thomas has had a, he's kind of had a kind of a recent pattern of what I would say, using cases as an opportunity for some musing. He has mused on social media, for example. He used, I believe, as a dissent from denial of cert to muse about, is there a means or a mechanism to regulate moderation on social media? Just amusing. And this is also more amusing from Justice Thomas. Hmm. Just as a kind of an intellectual exercise, how am I getting to the exact same outcome

of bowling through a different mechanism? But you didn't find it persuasive. I think I kind of found it persuasive. I mean, I found it interesting. I found it interesting, and I definitely see the logic to it. And I do think, as I say later on in our, as you guys can tell, we've already recorded the interview with Professor Vladek. As I say later on,

you feel like when you're reading the entirety of Section 1, there's an overall intent behind it, which is we're all equal now, and we're just saying this in kind of different ways. And I think that that's actually correct. I think that's an actual correct reading of Section 1 of the 14th Amendment. Just find it interesting when Justice Thomas uses an opinion to just kind of think out loud. Justice Gorsuch isn't thinking out loud. He's sort of making a moral declaration. And Justice Thomas is using the occasion of the ability to write an opinion that, you know, one of the great things about Supreme Court being a Supreme Court justice is, you know what? You got the power to just kind of write what you want to write. And not entirely when you want to write it, but you can kind of hang the opportunity to engage in some constitutional theorizing, kind of hang it around any given case. I just thought it was interesting. I thought it was

interesting. I thought the discussion was interesting. And everyone on Twitter needs to calm down that Justice Thomas does not want, does not believe that there is a right to segregate schools in the District of Columbia. That is not what's going on here. Yeah, those takes are annoying. I think that the criticism of the musings part, David, it's on the one hand, it's great to hear what the Supreme Court justice thinks about different clauses of the Constitution and the fact that he elevates that debate over the citizenship clause that nobody was having is a good thing. On the other hand, I think there's a real argument that this proves that they need to be taking more cases on the merits docket. If they've got time to write musings, you've got time to take more cases. Well said. I like that. Well said. Before we flow into the Vladek interview,

I'm going to take a point of privilege on one issue. I want to go back to the DeSantis-Disney law just for a second. I want to say this once again with feeling, okay? The fact that I do not have an underlying right to any given state benefit does not mean that that benefit may be revoked by the state for any reason at all. According, and that does not mean, and let me back up. The fact that I have a right to an underlying state benefit not only doesn't mean that the state doesn't have the ability, has the ability to revoke that for any reason at all. The fact that the Constitution protects explicitly explicitly my rights to free speech means that the state has to tread in a particular particularly lightly if it wants to revoke any given benefit because of my speech. And this is a very, very, very basic principle of First Amendment retaliation that has been

applied many, many times in American history. Now, it doesn't mean that every time you make a retaliation claim and you can provide some evidence of motivation that your speech was an issue, it doesn't mean that every single time you make a retaliation claim and you can provide some evidence of motivation that your speech was an issue, it doesn't mean that every single time you're going to win. Facts matter. Fact patterns matter. The specific benefit matters. So you have to litigate a case to determine the outcome. But there is ample, ample, ample precedent that a company that engages in protected, politically protected speech and is targeted for it, even if it's losing a benefit that it wasn't otherwise entitled to, can state a First Amendment claim. It's all over the place. And so I just was gobsmacked

over the weekend at the number of people who know better, Sarah, who know better acting like this was just absolute crazy, wild surrendering to the woke left to cite black letter First Amendment retaliation law. So point of privilege on that. Fair enough, David. Fair enough. retaliation law so point of privilege on that fair enough david fair enough all right let's move to our guest we have the one the only steve vladik professor at university of texas law uh we'll just get this out of the way real quick. I mean, JD Yale. So like, it doesn't even really matter for our purposes, you know, um, Amherst undergrad, which is exciting. He clerked on the ninth circuit and the 11th circuit. So double appellate clerkship. I mean, I don't even think we have time to get into my thesis on double clerkships, but he is part of the problem, obviously. Uh, now this is the best part, I think, of the bio. He lives in central Austin with his wife.

They co-host the In Loco Parentis podcast, by the way, which is an awesomely funny name and great podcast. Their daughters, Madeline and Sydney, and their eight-year-old pug, Roxanna. So more information on Roxanna. Do you have to update that every year? I mean, why not? It's a good excuse to keep the bio current. I think that is a good reminder. No, I've got to update it. It's the dog's birthday. That means go to the website. And Professor, you have your book coming out in a year called The Shadow Docket. Very exciting. We're going to talk a lot about that today. Thank you for being here.

Thanks for having me. This is a treat. So let's, there's two like introductory things we need to start with. One, we've talked a lot about careers in the law, you know, DOJ to public defender to how to become David French, which is its whole own thing. Will you give us the short version on the legal academia world, how one goes from you graduate Yale Law School, you clerk a couple times, you don't just raise your hand and say, I want to be a law professor or start with, you know, being an apprentice law professor and work your smith skills until they hire you for the big job. It's a very regimented process. Maybe just a couple seconds so that folks understand that. Yeah, I mean, I think the coin of

the realm is writing. And so one of the things that I think is beneficial about going to that law school in New Haven that my uncle refers to as a law school school, is that you really do get a lot of chances to write. And so I was coming out of my, you know, first clerkship with Judge Berzon, I was already pretty well established as a writer. And when you're on a law school hiring committee, that's what you're looking for. You're looking for people who have, you know, a record of scholarship and some reason to believe they're going to keep producing. You know, I actually did the second clerkship as sort of a favor after I was already teaching because Judge Barquette had a couple of vacancies in her chambers. But so maybe I'm not the terrible double clerker that Sarah is worried about.

I do think, though, guys, things have changed in the, you know, 400 years since I went on the teaching market. You know, I think it was a lot more feasible back then to do what I did, which was to say to get hired right into a tenure track job from a clerkship. We've seen this proliferation since then of these fellowships, whether they're called visiting assistant professor jobs or just teaching fellowships, programs like the Clemenco at Harvard, the Bigelow at Chicago. But now there are actually like dozens of them. And I think that has both good and bad upsides. The good upside of that is that like now you don't have to go to Yale, right, to be a really visible junior law professor candidate. You can go to Texas. We have some fantastic graduates actually who are in the

academy. And you can be visible from Texas because these fellowships have this egalitarian effect, at least on where you went to school. The downside is the fellowships don't pay very much. And so you are literally paying a price, right? You are, you know, it is, there are some inequalities in who was most able to bear the literal costs, right, of two to three years of pretty cheap labor in that space. So, you know, I think the reality is for anyone who's listening to this podcast, who's in law school, thinking about law school, thinking about the legal academy, nothing matters more than writing and having ideas, committing the ideas to paper, you know, and thinking about what you want your scholarly

agenda to look like. One of the interesting things I found years ago, like almost 20 years ago, I entered legal academia for a brief time. I stuck my toe in the pool. I was in the clinical faculty at Cornell Law School. And the thing that I noticed in this, so tell me if this is completely off base. If you want to be in legal academia, you just basically have to say, I'm willing to live anywhere in these United States of America. In other words, it's not like when you're getting out of law school or you're finishing a clerkship and you say, you know, I'm going to live in Nashville. And so I'm targeting Vanderbilt and Belmont or the Nashville School of Law. And the jobs are scarce enough that if you want to get into this, you just sort of have to say that the 50 states, and perhaps, I don't know if Guam has a law school, but if any territory has a law school, that's my market. Puerto Rico does.

Puerto Rico does. Okay, okay. So, David, I think that's right. I mean, I think it's not quite as bad as other academic jobs, because there are more law professor jobs than there are, say, philosophy or history jobs. But yeah, I mean, I think when you go on the market, you really do have to have this calculus about what matters, right? Geographic specificity or getting a job somewhere. And I was tremendously lucky. I mean, I was 24 when I went on the academic market. I had no commitments to anywhere. And I got an offer from Miami, a city where I think plenty of

folks would be perfectly happy to end up in that space. But I had an interview with Akron, you know, like that would have been a fascinating place to start. I think, so I think it's like everything else in life, it is a question of balancing your priorities. If teaching above all is what you want, then yes, you could end up in, you know, my friend Johanna Kalb is now the dean at Idaho, right? You could end up in Moscow, Idaho, right? That's great. If you are committed to a particular geographic place, then you have to be a bit sort of more willing to accept that it's going to take maybe a couple of years to find a job, right? That you can't just go on the market the first time. So as with everything in life, I think it's just a question

of what are your priorities and what is your ability to be flexible versus your familial, personal, financial commitments. Speaking of priorities and flexibility, you also can, I think, enlighten us on some of the, I don't even want to describe it, actually. Tell us about your constitutional ideology and describe how it might be different from one Samuel Alito. Justice Alito and I, I mean, I think we're like mirror images of the same person. So, well, let's start with the most important fact, which is that he roots for the Phillies. And I'm a Mets fan. And this is why I think we could never be friends. Well, let's start with the most important fact, which is that he roots for the Phillies. And I'm a Mets fan. And this is why I think we could never be friends.

But, you know, I think the reality is I think of myself, you know, first and foremost as a Fed courts person more than a con law person. But insofar as I'm a con law person, I really think there's a lot to be said for, you know, an approach I most regularly associate with Justice Kagan, that, you know, we care about text. We care about what the founders intended. We care about, you know, the structure of the Constitution and not just what's like good policy. I think it's just that we don't find nearly as much of the text conclusive as my dear friend Justice Alito does. And we don't think that looking only at the letter of the text is the be-all end-all. Case in point, just to take one area that I don't think sorts people on ideological lines, the war powers. I spent a lot of time early in my career writing about

studying the war powers, where if you look at founding era understandings, it's pretty darn clear. Two different things that we would be shocked at today. One, that Congress, not the president, would be the dominant mover in the area of war powers. And two, that the militia and not the standing army would be the dominant response force for everything except, you know, full-scale foreign wars. Those are both completely, you know, sort of lost to us today in ways that I think are important to both understand and appreciate, like, are inconsistent with some founding era originalist approaches to this kind of methodology. So I would say I am a, you know, sort of a Kagan-esque textualist in the sense that, you know, I think text matters, but I also think the text is inconclusive a lot more often than

some of my friends like Justice Alito. So let's make this concrete in a much more relevant context. So, for example, how does one approach? Well, you know, let's let's just go there. We've got Dobbs. We've got Dobbs coming. So how does a person who is looking at the text and the history of the constitution, uh,

like, and, and I'm, I'm pretty much, I'm pretty much with you on war powers. Actually. I'm, I am,

I got a whole album side on that. Um, but, uh, so let, let's dive in, you know, so the constitution on its face is silent on abortion.

Um, how does, how does a person, uh, with your does a person from your jurisprudential background approach that question? So I think this is probably too long for the podcast, but I think the short answer is we have to start with the slaughterhouse cases. I mean, I think part of the problem is that modern conversations about substantive due process often happen in a vacuum where we don't talk enough about how the Supreme Court denuded the provision of the 14th Amendment that was most obviously meant to deal with unenumerated fundamental rights. And so I actually, you know,

I think there's a lot, for example, in Justice Thomas's concurrence in McDonald versus City of Chicago that's exactly right about how our doctrine, our jurisprudence, even, David, the way we talk about abortion has been messed up by the fact that the Supreme Court rendered the Privileges or Immunities Clause of the 14th Amendment a virtual dead letter in 1873 so that we've had to shoehorn two different doctrines in corporation, right, applying different provisions of the Bill of Rights to the states and implied fundamental rights into a constitutional provision that was not possibly meant to deal with them, right? The Due Process Clause. And so I guess I would start any conversation about abortion with a conversation about what were the privileges or immunities of citizenship. And how did the Supreme Court Field dissents in Slaughterhouse where there's room clearly for judges and justices to recognize fundamental rights not enumerated in the Constitution through the Privileges or Immunities Clause. And I think we have a further textual hook for that in the Ninth Amendment. conversation tends to have this very sort of truncated, anachronistic feel to it, because we tend to sort of start the conversation in 1973 or even 65 with Griswold and Roe and not talk about what happens in the, you know, 100 years between Slaughterhouse and Roe, the 93 years

between Slaughterhouse and Griswold, where the court is trying to reinvent a jurisprudence that had a much more natural home that the court itself was responsible for demolishing. And if you're listening at home, you might be thinking, well, we've had since 1873 to fix this problem. Why haven't the privileges and immunities clause come back? And I think there's interesting debates around that. But one of the really simple explanations is that both political sides and I don't mean Democrat or Republican, but sort of both ideological sides of the legal debates, both fear how the courts will safeguard all the privileges and immunities of citizenship, I don't know the full extent of what that would mean. But for instance, you know, the right obviously fears, and again, I mean the legal right, not the political right.

The right obviously fears that the left will use it for abortion at all. But the left fears that the right will use it for these economic rights, licensing regimes, administrative state regulations that can be struck down saying, well, it is a privilege or right of citizenship to be a florist without having a license in the state of Louisiana. So are we like, is there any hope for moving forward on P&I, or are we just going to sit here and it'll be a fun podcast topic for our grandkids? I mean, I thought McDonald was the inflection point on that, Sarah. I mean, right? But it's been a while.

Well, yeah. says all but overtly in McDonald that he agrees with Thomas about slaughterhouse, that he agrees that this is clearly the right way to think about the original purpose of this prosimus clause. And then Stephen says, but 137 years of precedent, right, is a lot of water under the bridge. And I think, you know, this is why when I teach con law and I teach fed course, I really try to show my students that it's really hard to have these conversations in the abstract. That if you think of doctrine as like a body of water, as like a river, the Supreme Court keeps dumping boulders into the river that change the direction of the doctrine. And it's hard to know sort of where the river should have been going if you don't talk about all the boulders, if you don't talk about all the obstacles that the doctrine has evolved to move around. So I think that's right.

I think that, you know, there's reason for folks on all sides to be wary of overruling Slaughterhouse. I just think that, to me, the more important point for the contemporary conversation is that recognizing this history complicates the sort of talking point that, oh, well, abortion's not in the Constitution. Like, I mean, of course it's not. A lot of things's not in the Constitution. Like, I mean, of course it's not. A lot of things are not in the Constitution that folks who say that line nevertheless think are protected by the Constitution. That's not how we do constitutional interpretation. And so, you know, yes, it is absolutely bizarre that we have two very different doctrines that have nothing to do with due process that are manifested through, reflected in the due

process clause of the 14th Amendment. That they're in the wrong part of the Constitution, though, does not mean that they're not compelled by the Constitution in the abstract. You know, the interesting thing to me about the 14th Amendment and privileges or immunities, parts of the 14th Amendment, you pull out the phrase privileges or immunities, and it reminds me of the movie Blades of Glory. Did you ever see that? That's a cinematic classic. It stars Will Ferrell and Josh Heder from Napoleon Dynamite.

And they're the first all-male pairs figure skating team. And there's this moment where they're trying to decide. Sarah, stop shaking your head. This is going somewhere. There's this moment where they're describing what kind of song they're going to skate to and uh one of them suggests my humps by what what who who did that one was that uh the black eyed peas you were black eyed peas yeah yeah and um will ferrell's advocating that and they said but nobody it what does it even mean and will ferrell says nobody

knows what it means but but it's provocative. It gets the people going. And it feels like some of the privileges or immunities, what does it mean, privileges or immunities? But nobody really knows, but it's to be some drafting problems with the 14th Amendment. The overall thrust seems to be clear, which is we want to get past this notion that there are just different classes of citizens in the United States and different classes of people in this sort of post-slavery world. They're no longer different classes of people. And yet there was sort of a small wall of words thrown in that direction, equal protection,

privileges or immunities, due process. And we're kind of left to sort it out. And I think the one answer to you, one of the answers to you on the abortion issue is, okay, I got it. I understand your privileges or immunities reasoning, but there's also another human being involved here. What are the privileges or immunities? What's the equal protection? What are the due process rights of the unborn child under that analysis? Do they exist? Is it acknowledged? Are they acknowledged? And that would be, you know, that would be, I get your privileges or immunities analysis, and I think

a lot of it's pretty interesting. And like I said, in many areas, I'm kind of there with you. But I think one of the things that makes abortion complicated is that there's another human being involved. So without sort of going deep on fetal personhood, I mean, I do think that everyone, I think, agrees, David, that there's certainly another interest involved. I mean, without sort of defining when life begins, because that's above my pay grade. I just think that saying it's complicated, David, I think is actually really important. Yes, it's complicated, and complicated is okay, right? I mean, the whole sort of the anti-federalists, right, screamed at the federalists about how, you know, we're really worried about worried about the fact that there are no rights in the Constitution,

even though there actually is at least one. And the Federalists said, don't worry about it. Because as James Iredell says, if we start writing down some rights, you guys are going to turn around and argue that the ones we didn't write down aren't there. And the Anti-Federalists said, no, no, no. That's why we have the Ninth Amendment. And so, yes, it's complicated. I'm not trying to say this is easy.

But the notion that it's – I mean, I think that's an important insight in both directions in this debate. And that whatever privileges or immunities are and whatever they mean, that both the drafters of the Constitution originally and the drafters of the 14th Amendment understood it would be the courts that were giving content to these ideas and not just the states and the legislatures. Okay, we've got to get to the main course. Roberts has lost control of the Supreme Court. I didn't write the headline. And you have no idea how sympathetic I am to that because I published something about the voting rights laws in Politico and didn't write the headline and got endless grief about the headline. And I was like, again, I so been there on that one, too. Yeah. Dear listeners, when people publish stuff, almost never write the headline or even get to see the headline before it's published. It's like a it's a it's a not a Christmas surprise, more like an Easter egg that

has peeps in it. Like what a waste of an Easter egg. Sometimes even a cockroach. But given that, and obviously we'll put in the show notes for everyone to read, why don't you summarize your piece? Although, honestly, I could just read the whole thing out loud because every paragraph is really important to your argument. But you try because I don't want to even try. So, I mean, the short version is not that John Roberts has lost control of the court that happened the day that Amy Coney Barrett was confirmed. Right. The short version is that we are seeing Chief Justice Roberts increasingly assert his hostility to the other five conservatives only and specifically in the context these, you know, generally unsigned, unexplained orders. And the provocation for the op-ed was the one the court handed down on April 6th in the Clean Water Act case in Louisiana versus American Rivers.

You know, it was the seventh time, guys, that Chief Justice Roberts has been part of a 5-4 split where he goes with the liberals on a shadow docket order since Justice Barrett was confirmed. But it was the first time in all of those where he didn't just dissent, but where he joined the liberals in criticizing the majority's procedural shortcuts. Right. It was the first time that he actually, you know, to quote Justice Kavanaugh from the February Alabama voting rights case where he used the worn out rhetoric of the shadow docket. And I think that's telling because, you know, I think for as long as this has been an issue, I think there really has been the sense that it's divided people along classic ideological or partisan lines, whereas the liberals who are complaining about the shadow docket and it's the conservatives who are defending it. lines, where it's the liberals who are complaining about the shadow documents, the conservatives who are defending it. Here's John Roberts, who, with all respect to my friends on right-wing social media, is not a liberal. And he's not just dissenting in these cases, but he's actually now for the first time joining Justice Kagan and criticizing the majority, not for the outcome in these cases, but for the procedural shortcuts that the court's taking. And David and I have talked a lot about the shadow docket, the emergency docket. We sort

of use both terms interchangeably. We're agnostic as to which to use, I guess. They're now both so laden with opinions of their own of what it means when you use the terms. Can I put in one plug for not using emergency docket? Okay. Like, I don't,cket, right? Because your point is it's not an emergency? Well, no, no, no. Actually, to be fair, I think that's in the eye of the beholder, Sarah. But I think the problem is that the emergency orders that are such a visible part of this are actually not what either Wilbo or I mean entirely, right? That shadow docket's an umbrella term for a whole universe of what the Supreme Court does

that includes but is not limited to emergency applications, whether or not you think these are real emergencies. So my objection to emergency docket is not the fight over is this really an emergency. It's that the emergency docket isn't the entire shadow docket as either will or I understand it. You know what, I can't help myself.

No, I have to dive in on this a little bit because I think that's such a good point. But it seems to me that your main criticism is with the emergency docket part and not with the rest of the shadow docket because the shadow docket includes whether you get additional time to file that brief, whether so-and-so gets to file,

you know, is denied to file an amicus, the cert denials, the cert grants, you don't have a bunch of beef with those being like not having opinions to go with them or being somewhat inscrutable. I mean, some of that just has to happen and it kind of has to be inscrutable to some extent or else it's turtles all the way down. Your beef is with the emergency docket, though I completely agree with you that the shadow docket is like nine times the size of the emergency docket. So let me just say, I think my beef is mostly with the emergency docket. I

actually do think that there are pieces of the non-emergency part of the story that are still relevant. So, you know, for example, the Supreme Court in the Alabama voting cases and in the North Carolina affirmative action cases granted cert before judgment, something that used to be something that the court did once every 20 years, right? I mean, between the Youngstown Steel Seizure case in 1952 and, like, the Nixon-Watergate Tapes case, the court hadn't done it once, right? The court hadn't granted cert before judgment once, I think, in John Roberts' first, like, 14 terms on the court. And now they've done it once, right? The court hadn't granted cert before judgment once, I think, in John Roberts' first, like, 14 terms on the court. And now they've done it 16 times in the last, you know, three years. So, you know, Sarah, there are other things. I mean, the SB8 case, right, when Justice Gorsuch sends the case back to the Fifth Circuit as opposed to the district

court, even though the parties are fighting over where the remand should be, that's an order that has substantive effects. When the court decides when to schedule argument for a case, whether to squeeze it into this term or push it to next term, that's an order that produces substantive effects. So yes, I think most of the mischief that I've been documenting is on the emergency docket, but not all of it. And I think these trends are, this is not a large point, but I just think that like, it's worth thinking about how all of the things the court does that produce substantive effects beyond, right, the big fancy opinions we get every spring ought to receive more attention, whether you think they're by the book or not. Well, you know, from my perspective, it's completely obvious that something has fundamentally changed in this sense. completely obvious that something has fundamentally changed in this sense. And I've said this before on this podcast, my constitutional practice was 90%, 90 plus percent injunction based.

In other words, I'm going in, I'm seeking a preliminary, I file, I would file a complaint with a motion for a preliminary injunction attached. So that's how I would start a case. You win or lose on the, you know, if you lose the injunction motion, you appeal to the Circuit Court of Appeals. And then win or lose there, you would have this question about, do I go on bunk or do I not? But there was not, even if the case was getting tons of media attention and if it was, there was an unfolding circuit split. It was not in your mind that I'm on a rocket docket to the Supreme Court. That was just not on your mind. It was all of a sudden, once a cert petition is filed,

it was like throwing a whole beach full of sand in the gears. Whereas now it's become routinized. Yeah, exactly, exactly. And on some cases, I get it. In some cases, I get it. There are there are issues of such importance that the Supreme Court's just got a way in. You know, when you have something unfolding in the midst of a pandemic, like questions about vaccine mandates. Time is of the essence. Got it.

Got it. But it's much more common than it used to be. And it feels to me that a number of justices now are saying, we've gone too far. I mean, you've seen this in some of the Kavanaugh's. Kavanaugh. OK, regular order now, guys. Regular order now, guys, on at least a couple of the vaccine cases. So do you think they're going to start to pull back?

So, I mean, David, I think they already have. I mean, I think we've seen a number of sort of small signs this term that the justices are, if not reacting to the criticism, at least feeling pressure internally on this front. There's the Barrett-Kavanaugh concurrence in the main healthcare worker vaccine case in October, where Barrett says, just because we're sympathetic to you on the merits doesn't mean we should grant emergency relief, to which my response is, then go back and explain the entire October 2020 term. There's the oral argument in the vaccine mandate cases, the first time the court sat on bonk for an emergency application argument, so far as I can tell, David, since 1971,

certainly since the 70s. Steve, just quickly, that's because we called for that. I just want you to know that we called for them to do oral arguments. Yeah. Not realizing it would ruin my family's Christmas and New Year's. I mean, you guys weren't alone. I mean, some of these solutions are pretty obvious. The court also, guys, I mean, the court, the Texas religious efficient in the execution chamber case, Ramirez, you know, that's an issue that as recently as a year and a half ago, the court would have resolved on the shadow docket. They kicked it to the merits docket. The court's own rules, there was a rule proposal that the court issued in March to actually, for the first time, formalize how you file amicus briefs in support of shadow docket or against shadow docket application. So I think there's no question they're responding. I'm not sure they've actually

fully instantiated the actual criticism. I mean, so in the OSHA vaccine case, for example, you know, at the end of the unsigned majority opinion, the court summarizes what both sides framed as the trade-offs from blocking the rule, not blocking the rule, and says it's not our job to balance these trade-offs. So my response is, on an emergency application, that is literally your job. That is all your job is, on an emergency application, is to balance the trade-offs. So I think we're seeing sort of marginal indications, David,

that they are hearing some of these criticisms, but we're still seeing like the Alabama redistricting case, right, where the court puts back into effect these maps that two different district courts had struck down with no analysis whatsoever, right? We're seeing, you know, the Clean Water Act case from April. Ditto, right? Putting back into effect this controversial Trump era rule, no analysis whatsoever. So my concern is that so long as the court is continuing to do this, and by this I mean granting emergency relief without explanations in ways that they're expecting lower courts to follow, you know, this is going to

continue to be a problem, even if, David, you and I might agree that there are at least some number of cases warranting emergency intervention from the justices. Okay, so what do you do? Because by- I write a book. Yeah, indeed. Exactly so. Let's take the Navy SEAL vaccine mandate case. The lower court says that the Navy SEALs do not need to be vaccinated to be deployed. And this is a loose summary. And the government's, you know, the military is like, what the roof? Have you read Goldman versus Weinberger, they say.

And the Supreme Court says, yeah, someone has to win this in the interim while the case is being decided. And in the interim, we think that the status quo goes to the military. Whatever the military wants gets to be the status quo because we're talking about deployments and life and death situations. So what do you do if you get rid of the shadow docket? And I know that's not what you want exactly is leaving in place appellate court decisions, for the most part, they're appellate court decisions, set aside your cert before judgment stuff, that are not wrong in the merits, but maybe wrong in terms of where the status quo should lie before the merits are decided. So how does Steve Vladek fix it? So let me just say, I mean, this is a common response I get, which is, oh, you know, you just want, you know, you just don't like the results.

So the Navy SEALs case is a great example. I think it's exactly the right result and exactly emblematic of everything that's wrong with how the court handles the shadow docket, right? Where, you know, what was wrong with what the court did? Well, there's actually legal debate about how RFRA intersects with Goldman versus Weinberger, about whether RFRA overrides the deference we historically give to the military in the context of religious exercise. with a seven-page opinion that says the government is seeking a partial stay. Here are the factors we consider when deciding whether to grant a partial stay. Here's why we believe those factors are satisfied in this case. A good example of that, right, the CDC eviction moratorium. It's exactly what the court did with the CDC eviction moratorium, where I think they got the result

wrong because I read Section 361 differently than they do, but where I thought that they did it procedurally by the book. And so this is, you know, this is where I think the criticisms of me are really, I think, too superficial. Like, my problem is not with the shadow docket. The Supreme Court has to have a shadow docket. It could not function without it. My problem is not with granting emergency relief on the shadow docket. There are all kinds of examples of cases, both historically and today, where I suspect we would all agree it's necessary, right? The issue is the court granting emergency relief so much more often in ways that affect so many more people while hewing to the traditional mode of not providing any explanation. And so I would like, that's what was missing to me in the Navy SEALs case was even a modicum of analysis.

Okay. I want to see if Steve Vladek and I can get in violent agreement on something. I think that the traditional stay standards, likelihood of success on the merits, number one, and irreparable injury, number two, my two main beefs, I think these are useless factors at this point, that they should all be tossed out and we should start over and build new factors. One of the factors should be the one that Justice Kavanaugh and Justice Barrett, I believe, signed on as well, and I might have them flipped and you'll know better than I, shoehorned into likelihood of success on the merits, which is likelihood that we would take cert on this case.

That's not likelihood of success on the merits to me. That's a different factor and an important one, probably. But it is separate. Likelihood of success on the merits shouldn't be one at all, in my view. In irreparable injury, usually both sides have something close to irreparable injury or we need to redefine irreparable. Right now, it's just that economic harm doesn't count as irreparable except when it does. And I think we can come up with better factors. What do you think? So I'm in violent disagreement with you that we can start violent agreement with you that we can come up with better factors. Two quick notes, though. One, likelihood of grand exert is already one of the factors.

Right. So I think the court could just be more candid about that. Two, the factors are statutory interpretation, right? That the court is interpreting its statutory authority when it applies these factors. If there's something wrong with the factors, and Sarah, I agree completely that the court has turned irreparable harm into a mush. If there's something wrong with the factors, that's a question of statutory interpretation,

where the court has historically said, super stare decisis, right? If there's a problem, hey, if only there was a body that could modify the court's statutory jurisdiction. If only that's how this had worked for the first 200 years, where whenever the Supreme Court thought there was a problem with its jurisdictional statutes, it went to Congress. The Judiciary Act of 1925 is literally known as the judge's bill because it was basically written and lobbied for by Taft. And so, you know, again, I think I'm often caricatured, I suspect, including by some of the folks listening to this podcast, for just being this hippy-dippy liberal who thinks everything the

conservatives do is wrong, when the reality is, like, I think there's a lot of useful institutional stuff here that the shadow docket paper of the last four or five years reveals that suggests that one of the things that we really ought to all be talking about is structural reassessment, structural reforms to the Supreme Court's entire docket, Sarah, perhaps including the stay standard under 2101F. So, you know, that's a conversation that I think is exactly the one we ought to be having know, that's a conversation that I think is exactly the one we ought to be having. And it's a conversation that I wish more of the justices would publicly endorse as opposed to complaining about the worn out rhetoric of the shadow docket.

I don't think the rhetoric is worn out. I think it's just that like, you know, everyone who I think feels that way often doesn't fully understand what the criticisms are. Well, David and I believe nothing if not that Congress needs to do more and that the courts and the presidency need to do less. Somebody is going to think that we slipped you a little extra cash to rant against Congress' congressional inaction. Well, if you've read any of my scholarship, you would see that it's been going on for a while.

Professor Vladek, thank you so much. This was super helpful. We'll put the piece in the show notes and you can pre-order the book on Amazon at some point in the future. At some point. We will flag when you can. I'll tweet about it so you can find me there.

Guys, thanks so much for having me. You bet. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos.

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Use code ADVISORY at checkout to save. Terms and conditions apply. That was incredibly nice of him to join us. Great conversation. Look forward to reading a list of comments on the conversation. Sometimes the listener comments and subscribe to the dispatch so that you can comment. Lister comments on our interviews are always interesting. They always often bring up something that we should have talked about more, but he had limited time. So I apologize that we kind of hit top line stuff. But let me wind up with a pop culture recommendation, Sarah. Went to the movies Saturday night and saw The Unbearable Weight of Massive Talent. This is the Nicolas Cage movie, and Pedro Pascal is his co-star. And I don't want to talk too much about it, but anyway, Nicolas Cage is hired by Pedro Pascal is his co-star. And I don't want to talk too much about it because,

but anyway, Nicolas Cage is hired by Pedro Pascal, Nicolas Cage playing Nicolas Cage, playing Nicolas Cage with financial troubles, which is playing Nicolas Cage, is hired by a mysterious guy for a million dollars to show up at a birthday party. It's so stinking funny and hilarious. And we had just a great time at

the movies. So the unbearable way for this, and I've been wanting to watch it. So is it only theaters or can I just pay a premium and watch it at home? Cause I'm not going to a theater. Let's be honest. No, it's only theaters. It's only theaters, but you won't, I'm sure you won't have to wait too long, but if you do go to theaters and i i'm still i'm going out to theaters and this is the first non-imax movie that i've seen in my going out to theaters during and post pandemic but it's so funny it's so good really enjoyed it so um the trailer is amazing you should put the trailer in the show notes because the trailer alone is and pedro pascal uh i first met him i guess for narcos right when he was um in that season of narcos and just right away you're like this guy's a star he's amazing i don't want to look away and then he did become a

star mandalorian and all sorts of other stuff yeah he was uh andy tremendous season of game of thrones like he was he was a scene stealer in Game of Thrones. Right? Yeah. So go see the movie. It's fantastic. All right. Well, this has been good, solid podcasting today, Sarah, if we don't say so ourselves.

Oh, and for those asking whether I've just permanently adopted the Elizabeth Holmes voice, no, I just permanently adopted viral problems in my system and am still sick. So that's right. I've been sick for nearly six weeks now. Ugh, so sorry. Yeah, it's so frustrating. But yet you soldier on, providing that-

Well, thanks to Caleb. Like you guys don't even know how bad this podcast is because Caleb edits it, edits out my insane coughing, nose blowing. On one of the dispatch podcasts, David, I was, you know, using cough drops the whole time last week. And someone in the comment section was like, Sarah sounds like she was sucking on a cough drop the whole time. And I'm like, literally what I was doing. That's not a sick burn. That's just an accurate description.

Did you go down to Galveston like people did in the 18th century to have the cleaner air? Yeah, the vapors. I'm here for the vapors. And you know what? It actually, I feel better today than I have felt this whole time. So it's working. That salt water is really helping. Well, and I imagine that D.C. right now is pollen central, which can't help. Unfortunately, Texas also has the cedars that have invaded, moving from Austin to Houston.

So it's a little hard to say. I don't think the cedars have made it to Galveston, though, so I'm good. Well, take care of yourself. And we'll be back Thursday, and hopefully Sarah will be much better by then. But until then, please go rate us where you get podcasts. Please subscribe where you get podcasts. And please check out thedispatch.com. Bye.