Advisory Opinions - Special Master No More

Episode Date: December 6, 2022

Finally, the Supreme Court hears arguments on Creative 303, the case that asks whether a web designer can refuse to provide her services for a gay wedding. And the hearing was... a mess! Also: The 11th Circuit shuts down the Special Master's review of Mar-a-Lago documents. David and Sarah sum up the ruling as “predictable, even quasi inevitable," while debating whether or not it "dunked" on judge Cannon. Show Notes: -303 Creative Oral Argument Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger and we've got loads of SCOTUS today. Well, really only talking about two SCOTUS cases, but one of them is the oral argument in 303 Creative, which could get spicy in a couple of moments. Sarah, I detected some judicial, Some judicial, how shall I put it, peak, some displeasure with some of the arguments being presented. That was pretty.

I had displeasure. So, yeah, so we're going to dive all into that. But before we do, there's a couple of things that we want to talk about first. Supreme Court and student loans and 11th Circuit and special master. And so I'm going to read to you, Sarah, the entire statement from the court on student loans and ask you to translate for everyone. Consideration of the application to vacate injunction presented to Justice Kavanaugh

and by him referred to the court as deferred pending oral argument. The application to vacate injunction presented to Justice Kavanaugh and by him referred to the court as deferred pending oral argument. The application to vacate injunction is also treated as a petition for a writ of certiorari before judgment and the petition is granted on the questions presented in the application. The clerk is directed to establish a briefing schedule that will allow the case to be argued in the February 2023 argument session. What does all that mean? Think of this like the cousin to the emergency docket. It is the emergency docket, but it's like also a cousin. All right. Sorry. That's not, that wasn't helpful at all.

Oh my God. All right. So basically- The cousin to the emergency docket. Okay. Got it. It's also related to the emergency docket. We've talked about this before where there's the merits Supreme Court docket, and that follows the normal case, right? You get a final decision from an appellate court, a three-judge panel, and then you seek certiorari at the Supreme Court. And the court reviews that at their conferences.

A petition could get held over, yada, yada, yada. This process takes a long time. It gets set for oral arguments several months later. However, as we've learned, there's another way to get to the Supreme Court, and that's the emergency docket. You're not waiting for a final decision from that appellate panel. In this case, on the merits, at least, you're going up on something like an injunction one way or the other. You know, for instance, just to make a hypothetical, this government program is about to go into effect. And if it goes into effect, I will be irreparably harmed by it. So will you pause it going into effect

until we can litigate whether it's legal or not? That's not on the merits. That's on whether it should go into effect before we can litigate it or let it go into effect. We'll litigate it because we can always unwind it later. When that gets to the Supreme Court, it follows the same process. You still have the district court, you still have the appellate panel, and then you go to the Supreme Court on just that one question. That's the emergency docket. And in this case, when you go to the Supreme Court and say, hey, will you stop this program or allow this program to go forward? That's not seeking certiorari. But what the Supreme Court has been doing recently is saying you know what we're sick of this we'll just take it how about that yeah so we're treat it as a petition for

certiorari grant that and schedule it for oral argument in this case in february and david it's just worth noting here i want to read you the Supreme Court grants a certiorari before judgment. So we'll be calling it cert before judgment from 1988 to present. You ready? Yeah. 1991, Louisiana Supreme Court election. 2002, affirmative action case, Bollinger actually. 2004, federal sentencing.

That was part of the Booker federal sentencing thing. All right. So from 1988 to 2004, we have three. Okay. From 2004 to 2018, we have zero. Okay. And from 2019 to now, I believe this was number 18. It might've been number 19 because it's hard to count that high. I run out of fingers, but it's a lot. So all of a sudden, A, you're seeing that huge rise of the emergency docket. And then not surprisingly, as a result of that, you're seeing them just take a lot of these cases

into their merits arguments in general. Now, this is slightly different, David, than for instance, the vaccine mandate case. That was not treated as cert before judgment. They just held oral argument on the emergency petition. Right. I know. And some of this doesn't really matter

to tell you the truth for the purposes of like, so are we going to resolve the case? Yes. Yes is the answer. Same as we did with the vaccine mandate case. Same as we're going to do with the student loan case. But it now gets taken off that emergency docket, put into that general merits hearing, and we are going to hear it in February. Now, this is the Missouri state case that we talked about that we said was the most likely to go to the Supreme Court.

Also, the most likely to win if it went. So lo and behold, David, Virginia says now, interestingly, at the same time, the Fifth Circuit also has a case that the Fifth Circuit panel just refused to allow the program to go into effect. So it has that has no effect because of this Eighth Circuit and Supreme Court stuff. But the government has gone up to the Supreme Court and said either consolidate these cases or vacate this one with this one pending, whatever you want to do.

But like, this is kind of messy. No one's paying attention to that one right now, but technically there were then two injunctions against the student loan program at the appellate court level. And for longtime AO listeners, you'll know that the state case that has been enjoined, the Eighth Circuit case that is going to be heard at the Supreme Court, this is the one that we have said from the beginning is the one with the best crack at standing.

So this is the case with the best crack at standing. That's not just us saying it. A lot of the folks who've looked at all these standing issues say that the states, when they have a built-in loan administrator, that there is a financial impact for the loan forgiveness. So they're going to be able to get standing. So the term just gets more interesting, Sarah. I was worried that February would be boring. No, I wasn't. Oh, not at all. Not at all. Okay.

Speaking of not boring things, here's another one. This is, I'm going to, again, read something briefly. And this is an 11th Circuit opinion, Donald J. Trump versus the United States of America. This is Donald Trump's effort to get a special master appointed that placed a hold on aspects of the criminal investigation into Trump's relocation of records to Mar-a-Lago. This was an opinion issued late last week. And it was the panel, this is important for people to know, was before William Pryor, Judge Grant and Judge Brasher. this is important for people to know, was before William Pryor, Judge Grant, and Judge Brasher.

So that's two Trump appointees, and then a Bush appointee who was on Trump's shortlist for Supreme Court, that's William Pryor. And here, it was a per curiam decision. So we do not know the author of the decision, but per curiam, it says, this appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation.

The answer is no. And that's the end of the opinion. Just kidding. I know. It goes on. It goes on. But I love the bluntness up front, Sarah. I got to confess.

So you remember after this oral argument, when we talked about it, I said it was maybe one of the worst oral arguments I'd heard in terms of its lopsidedness. I didn't mean really that one side did a poor job, actually. I just meant like there was no question as to the outcome. They were really pushing on which of the four ways does the Trump legal team lose?

The sort of get in the front door is, did the district court who appointed the special master, Judge Cannon, have jurisdiction when this lawsuit was filed before her? Because if the answer to that's no, then nothing else matters. That was the question they answered there in that first two sentences.

The answer is no. There was no jurisdiction. You couldn't take answered there in that first two sentences. The answer is no, there was no jurisdiction. You couldn't take the case in the first place. Therefore you couldn't have any opinion on the outcome of this. Therefore there couldn't be a special master. Therefore, I mean, it goes on. There is no equitable jurisdiction, but because they, I'm sure didn't want to lose the opportunity for all these other issues they thought through, they went ahead and walked through the other ones where you lose on all of those as well. It was just a, it was nose all the way down, David.

It was a comprehensive judicial demolition of a lower court decision. But there has been a difference of opinion on this. I, so did you think that this opinion dunked on Judge Cannon or was respectful to Judge Cannon? I thought it was, let me put it this way. The opinion was not written in a dunking manner,

but the Judge Cannon lowered, her decisions were so poor that it was even a matter of fact explanation of the gap between her ruling and the law appears donkey. Exactly. That's exactly what I thought. All these people who were like, oh, they're schooling Judge Cannon. I was like, here are the factors. Factor number one, which is indispensable, is was there a probable or even possible constitutional violation? No, in this case, the judge, Judge Cannon said there wasn't, but said that somehow she didn't

need that factor. And so they're like, yes, but our precedents say that you do. So this was resolved very easily on that question alone. Now, do you want to walk through the other factors? Okay, we will. It also loses on those factors as well, which you found compelling, because the only way it can win on those other factors is that if you somehow think that this search warrant was different. So there wasn't a constitutional violation. And the only thing that makes the search warrant different, as stipulated by both parties, is that it was executed against a former president. They're basically like, nope, that's also not a rule that we're going to create right

now, is that former presidents have a different expectation of privacy. So I did not find, I found the language actually incredibly straightforward and as respectful as you could possibly be while finding someone's entire last six months meritless. Not wrong, meritless. Right. There did not need to be a single gratuitous reference to Stranger Things or any other pop culture or George Orwell or any other pop culture phenomenon that we've talked about in other cases by other courts. Didn't need to be clever in any way, shape or form. Just go straight through. And the very ending, I think is indicative of the opinion. The law is clear, the court said,

we cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our case law,

limiting the federal court's involvement in criminal investigations. And both would violate bedrock,ordering of our case law, limiting the federal court's involvement in criminal investigations. And both would violate bedrock, separations of powers, limitations. There just was no legal basis for the original order. And if you're going to explain that comprehensively, it's going to come across as the way it came across, but there was no extraneous,

there was certainly no sort of extraneous insulting going on in the opinion no humor no snark nope um and this is this is the paragraph that stuck out to me this is quoting from a supreme court opinion it is a familiar rule that courts of equity do not ordinarily restrain criminal prosecution. And so then the question is, is this an ordinary, would this be an ordinary restraint of prosecution? There's four Rishi factors, Ritchie or Rishi, Ritchie. I think people say Ritchie. One, whether the government, don't worry, people will tell us. One, whether the government displayed a callous disregard for the plaintiff's constitutional rights. Everyone agreed the answer to that was no. That factor is considered dispositive. You have to have a yes to that one.

It's necessary but not sufficient, mind you. There are other factors, but you have to have that one. Two, whether the plaintiff has an individual interest in and need for the material whose return he seeks. They said, while he has an individual interest in some of his personal items, the Celine Dion pictures were mentioned several times in argument for some reason. I don't know why that would strengthen your argument. I don't know.

But the need for the material was never established. Three, whether the plaintiff would be irreparably injured by the denial of the return of the property. Here, of course, we're talking about the property seized for the investigation. Again, even if you hold that he has some interest in governmental records through executive privilege, which gets into that messy, how do you assert executive privilege against the executive branch? privilege, which gets into that messy, how do you assert executive privilege against the executive branch? You don't even need to get to that because they just didn't cite any irreparable injury for him possessing those documents. And four, whether the plaintiff has an adequate remedy at law for

the redress of his grievances. Yes, this is a criminal proceeding that is currently going on in a different court. This judge had no need to exert equitable jurisdiction, stepping in, because again, it has to be extraordinary. And those are the four factors to determine its extraordinariness. So, an early Christmas present to Judge Deary, the appointed special master, he's done. He gets to go home and enjoy some much needed R&R with his break.

So this was very expected. This is nothing unexpected about this ruling. Very expected. Quasi inevitable, perhaps. And the Supreme Court's not going to do anything to disturb this outcome. Absolutely not. Interesting note on the per curiam. So a per curiam means we don't know who wrote it. It also means in theory that you could have had a two to one vote and then the dissenter chose not to write. The reason that nobody is really entertaining that possibility is because of the oral argument. All three judges were singing from the same hymnal. So then the question is, why is it PPC? Why is it not authored? Generally, if you're trying to move really, really quickly, all three judges

and their law clerks and everyone kind of just rose in the same direction and is throwing things in there and site checking it together just to try to get it out as quickly as possible. And so it doesn't go through its normal circulation process. And so that's why you would end up with a per curiam opinion, not to hide the author, but it's almost because there isn't really a lead author the way that there would be in the normal process. You know what I would, what I need to do one day, Sarah, is write up all of the ways in which Trump appointed judges have frustrated Trump's lawlessness. It's a really long list at this point. And it starts with the Supreme Court and it goes down.

And it's important. Oh, absolutely. So, you know, this is this is and the reason why I raise this is a lot of people have asked me, when would you ever show can you ever show when these Federalist Society judges that you guys have talked about ever issue rulings that depart from their politics or depart from their political preferences? I think, you know, if you're going to go to brass tacks political preferences and wouldn't Federalist Society judges want more Federalist Society judges on the bench? Or wouldn't Judge Pryor want the chance to remain on the Supreme Court's shortlist?

Judge Grant was on that shortlist as well. You could argue that Judge Pryor will have aged out of any shortlist by the time that a future President Trump would come back into office. Judge Grant will be in that top 10 of any shortlist for a future Trump presidency. She's young. She's incredibly well-respected and well-regarded. So, yeah, of course, this was an opinion against raw political personal ambition interest. Right, right. But like the law was so easy.

I know. I know. But, you know, I want to just point out to people who say you're these judges never go against interest. Isn't it so convenient how their philosophy, between legal philosophy and not just political interest, but what an entire grassroots of a political party that got you on the bench is braying for you to do. And these guys and these men and women have said, nope, nope, nope, nope, nope, time and time and time and time and time again. And I just think it might be useful to chronicle all that at some point, Sarah. Maybe you should. Maybe I should. Maybe you should.

All right, let's move on to the main event. 303 Creative Oral Arguments. Let's do this broad and narrow. Okay. Broad impressions of the argument first and then individual moments that were particularly telling. So you go first on your broad impression.

I've got mine. I'm eager to hear yours. Broad impression. I count six votes to find 4303 creative. Justice Kagan could have an interesting separate dissent. I don't think it'll be a concurrence of any kind, but otherwise this looks like a pretty easy to guess 6-3 case. I will say on the oral argument itself,

I found this one of the least satisfying oral arguments. Completely. Maybe of the last several terms actually and it was unsatisfying for a few reasons and i've been trying to pinpoint it knowing that we were going to talk about this because that's my job but but it's a little hard to pinpoint why so let me try which is this is a hard case because it pits two different sets of upsetting hypotheticals against one another in a lot of ways. Right. And for me, one of the beauties of the law, the majesty of the law is that we have a way to deal with those things. Yes. You use those hypotheticals to tease out the logic and where your argument would end up. But you do have to have the logic.

And you do have to grapple with both sides of those tough hypotheticals. And it just none of that happened for me. This was not a logical argument argument this felt like a lot of emotion a lot of defensiveness frankly the advocates seemed really confused by the hypotheticals at various points they were answering in unsatisfying ways given their positions in ways like at points they would concede things and then say they hadn't conceded anything. Again, all examples we'll get into. But it was almost like nobody came prepared for today. I don't know. It was very unsatisfying. So I'm going to partially agree with that in an important way, the hypotheticals.

Hypotheticals are common in Supreme Court arguments. They're common in every kind of argument, especially when you're trying to, when you have a case that's going to be articulating a legal rule that's going to have applicability outside the facts of the case, then you're going to be dealing with hypotheticals. To me, these hypotheticals didn't seem so much designed to test the legal logic of Colorado and of 303 Creative, but to test their commitment to how big a jerk they wanted to seem. In other words, like the way in which Sotomayor in particular pressed Kristen Wagner was, I'm going to put together hypos that are not nearly as comfortable to sort of proudly say, yes, I support the free speech interest here.

As when you have a woman who's a Christian and nobody's claiming that she's some sort of, I mean, some people are saying she's a hateful bigot, but she's not. This is not like representing the Klan, right? This is just not that case. So Sotomayor seemed to be very intent on sort of saying, okay, what if it isn't Laurie Mason? What if it's somebody who has convictions that are far less mainstream, far more sort of universally hated? One of the examples was you don't believe that disabled people should get married to one another because you don't want to propagate that disability. So eugenics. What if one of your beliefs is anti or pro eugenics?

Right, exactly. And so I felt like what Justice Sotomayor was trying to get Kristen Wagner to say very clearly was, yeah, the anti-disability person wins that case. Like, you know, this is Nazis marching through Skokie stuff, right? This is really bad people have the same free speech rights as really good people. And the issue isn't whether their speech is really good or really bad. Is it speech and what's the role of the government in regulating that speech?

And so there was a lot of sort of bobbing and weaving. But at the end of it, Kristen, to me, circled back and was like, yeah, they have that right. But it wasn't direct. Although, again, later on, it got more direct. But early on, it wasn't direct. And it again, later on, it got more direct, but early on it wasn't direct, and it felt like there was some bobbing and weaving where Sotomayor in particular and Justice Jackson secondarily

were saying, I want you to own your logic. Own your logic with terrible people and terrible speech. I want you to own your logic. Then it all flipped back around when the Colorado Solicitor General got up and the more conservative justices, particularly Justice Gorsuch, were like, you're going to have to own your logic too.

I want you to own it. Yeah, except that makes it sound like it was a satisfying argument. And I guess in those hypotheticals, I found that the answers from the advocates were really unsatisfying. There are other ones where I thought the hypos themselves were unsatisfying or unclear, etc. But in those cases, and I think this is an interesting strategic question, because if you are simply looking at this, you know, the oral arguments were secret, for instance,

if they weren't recorded, and they weren't going to be broadcast, I think the strategy would be quite different. You're trying to help justices write an opinion where you win. And in that case, you want to own those hypotheticals and say, yep, unpopular speech is protected also, and give the Skokie example and basically say like, yeah, in this case, you may believe that I represent a Nazi, but it doesn't really matter. And vice versa, if you're Colorado, you want to say, yep, it may turn out that that means that singer-songwriter has to perform at the Republican National Committee

because they have to perform at the Democratic National Committee. But because they are public and because you're representing a real person and a real client, you may not want to say that they are the same as the Skokie Nazis and you're representing yourself as well. And actually, interestingly,

both ADF, of course, is not a private law firm. I'm looking for paid corporate clients and Colorado is a state. So same thing. But, you know, these are real people with real families. And I just found the objecting to the hypothetical, trying to change the hypothetical, really unsatisfying because in some cases that is helpful. But in this case, the whole problem is the hypotheticals. Both sides have bad hypotheticals. And so I wanted more

ownership of it from a strategic level. Actually, I thought they made a strategic mistake, burning time on saying like, well, I don't know that that's a public accommodation. Nope, just that's not what this case is about. And I want to get to the public accommodation stuff. And that because that was stipulated. It was stipulated in this case. Um, so again, really unsatisfying answers from the advocates on stuff I know they prepared for because that's the main thing you'd be preparing for. But yeah, even the hypos from the justices at times were muddy. Well, and that was, so I focused on the clear hypotheticals. And the reason I didn't like the clear hypotheticals as much

is because they felt like they were designed, when I say designed to make the opposing advocates own their logic, that makes, that gives the hypo too much credit, I think, because- Yeah, it didn't change anything.

It just made it disabled people instead of gay people. It didn't actually test the logic. Unlike, I think, the Justice Jackson scenes with Santa, the restaurant example, there was a publishing house, this whole thing. It was all, oh my gosh, it was all hypos. I honestly, at one point, was just like, can we stop with the hypos?

Can we actually just walk through the logic more clearly and what the test would be? Because frankly, both sides' tests were pretty terrible and useless. And again, you know the justices are going to have to come up with a test. Why would you not help them come up with a better one? You know, the constant flood of hypotheticals, to me, rendered the argument because some of them were fine, but they were designed to sort of make the advocates look bad. In a way, it felt like they were designed to make the advocates look bad. Yeah, they were Senate hearings. All of a sudden, the Supreme Court oral arguments turned into a Senate hearing where your side helps you, the other side hurts you, and not in interesting legal logic ways. Justin, as you said, like, but what if it wasn't gay people? What if it was disabled people?

Well, obviously the logic then would apply. Like that's not an interesting test of the logic. But then you had, for instance, Justice Barrett asking Kristen Wagner from ADF, who represents 303 Creative. or three creative. Okay. What if a heterosexual couple said, um, uh, on our website, we want a statement of our relationship and how we found to love each other. And it's going to say something like this. We are a cisgendered man and woman, um, you know, heterosexual, but none of that matters. It doesn't define our love. Our love would transcend that regardless. And that's what this marriage is about. Would your client make that website?

And Kristen Wagner said, yes. And look, online and among legal commentariat, that's getting dunked on a lot because that was the wrong answer, right? Justice Barrett was trying to tee her up for this idea that if it was a, uh, a heterosexual couple who wanted to say something that was an anti-biblical statement on marriage, i.e. our genders don't matter, our, you know, heterosexual status doesn't matter, that she would decline to make that website and of course

justice barrett asked it again and kristen wagner answers it correctly and i correctly here i'm putting in quotes to mean um in a way that helps her client because the whole point is that she's not turning away someone based on their protected status but based on the message that they want her to convey. But at that point, like, haven't we lost the thread, ma'am? It was a damaging moment, frankly, for ADF's argument. I understand it's not logically because she answered it correctly eventually and so it doesn't matter, but it was damaging that, like, it's not intuitive.

You have to listen really closely. Some of these seem right or wrong. It sounded like the status did matter when you can answer that question incorrectly at first. Yeah, that moment was really interesting to me because obviously Justice Barrett was trying to bail her out. Right. Trying to bail her out in a very specific way to say,

to highlight the issue was a particular message about marriage. And then inadvertently ended up with kind of a textbook example of why the conversation from the Christian world is so muddied about marriage. Because on the one hand, is what you're defending just the opposite sex nature of marriage when sort of biblically, there's a lot more to it than that, like a lot more, or are you trying to defend a biblical conception of marriage, which then sort of knocks out the way a whole lot of heterosexuals view marriage who don't share those same biblical commitments. And that's where things get really same biblical commitments. And that's where things get really confused in the debate. And this is something that was actually a point in all the marriage conversation back and forth involving some of my pieces over the last two, three weeks was, wait a minute, what are we

talking about here? Are we talking about that the real circle the wagons moment is around the opposite sex nature of marriage alone, or is the circle the wagons moment around a particular sort of biblical conception of marriage? And it seemed like, and with answer one, the circle the wagons was around the opposite sex nature of marriage alone. And answer two was, no, there's more to it. There's more to marriage than just the opposite sex nature of marriage by itself. And that kind of in an interesting way reflected some of the confusion surrounding the larger meta debate over the issue as well. I thought it was very, very interesting the way that all played out.

So let's talk about Justice Jackson's couple hypotheticals here. She has the scenes with Santa. about Justice Jackson's couple hypotheticals here. She has the scenes with Santa. So there's a photographer at the mall with a Santa and anyone can come and have their picture taken with Santa. However, this photographer also offers, in addition to the normal sit on Santa's lap photos, scenes with Santa in which they recreate scenes

from It's a Wonderful Life to have a certain nostalgia for the first half of the 20th century. And because that nostalgia is inextricably linked with It's a Wonderful Life and frankly, the Jim Crow era, that will only have white children in it. No black people. Now, the children of color can still sit on Santa's lap.

I'll still take their picture. But when it comes to scenes from Santa, no. So the question to Kristen Wagner was, let's assume this is a public accommodation. Of course, a mall Santa is. There's even another mall Santa on the other side, by the way, she said. That's a black Santa and he'll do whatever.

So there's plenty of options. But what about the scenes from Santa? And Kristen's answer to that, and she gets asked scenes from Santa a few times here. Yeah. But it was that the pictures weren't conveying the message that was the objection if they allowed children of color into the scenes from Santa. And I guess I got to say, like, disagree. If your whole point is that you want this, your art, you know, you're a Pulitzer Prize winning Santa photographer. And your art is meaningful. And what you're going to say with that photograph is meaningful.

And you want to recreate It's a wonderful life then that is the message right and so I I disagreed with Kristen's attempt to try to differentiate it and she kind of did both she was like well I don't think that that message is different like the message that they're trying to convey isn't contradicted by including people who they disagree with? And I was like, yeah, that literally it is. So I found that an unsatisfying answer. She also had the example, which I actually thought was harder in some ways because Justice Kavanaugh asked about jewelers,

caterers, chefs, can they refuse to help to work for rather a same- sex wedding? First of all, jeweler, that feels spot on to me. That's an artist who's creating, I mean, my ring at least, like I sort of, you know, Scott and I designed it or whatever and had someone make it. It doesn't seem that different than a website. Like, we're not jewelers, but I think that's art. We're not jewelers, but I think that's art. And the caterer, we've talked about cakes, obviously, but fine, it's not cakes, it's past hors d'oeuvres.

They're saying, well, the cake is symbolic because it's a wedding cake, but the past hors d'oeuvres aren't. Okay, I'm gonna kind of, I'm not sure about that. But in Justice Jackson's hypothetical, she talks about, oh, I'm gonna get the name of her hypothetical company wrong, but the Protestant food. Did you write it down? Yeah, I did not write it down, but it was like grandma's Protestant cookies or something like that. Yeah, it's like grandma's Protestant soul food or whatever. And basically, they believe that

food is part of this nourishment from God in this hypothetical. And so she believes that food can cure you, you know, of what ails you. Like grandma's always home cook and did. And so what she's going to do is she's going to sit down with you and you're going to tell her what is ailing you. And then if you're Protestant, she'll tell you what the recipe is. And Kristen's example to that, I thought, was good. And Justice Jackson cut her off, but then they come back to it, which was, well, here, the message is different from the status, potentially, versus where the message is the same as the status. And she used the example of the Hamilton musical. So sure, the words in the Hamilton musical could be sung by anyone.

But actually the casting is part of the message. The point of the musical was to cast people of color in those roles and you can't separate that. I actually wish that the Hamilton example, it did come up a couple more times in the argument, but I thought that was a really strong example to combat my, the same exact words on the website. One is for Scott and Sarah, the heterosexual couple, and one is for Scott and Sarah, the trans couple. And how is that still speech? That the Hamilton example is what is the best answer to that. That there is things being conveyed in the speech

that is not only in the words themselves, or rather the words convey different messages depending on who is speaking them. And then you have Justice Barrett talking about the songwriter. So, and this gets to an important argument, I thought in Kristen's about the stream of commerce that once you put something in the stream of commerce, for instance, you make

beautiful Bibles. You have to sell those to everyone. And if you know that someone's going to use it for a Bible burning versus their, you know, their Bible next to their bedside table. Yeah. Like, nope, you still have to sell it to their bedside table. Yeah. Like, nope, you still have to sell it to them because once it's in the stream of commerce, you don't get to decide what happens to it. And so the songwriter who writes a song set aside licensing issues and copyright issues and stuff like that. But the songwriter who writes a song, once it's in the stream of commerce, they don't get to decide what weddings that song is played at. But if you're asking them to perform the song at the wedding, well, now we're into the website hypothetical. And of course, it's worth mentioning here, 19 jurisdictions, though not Colorado, have political ideology as a protected status. And so that's where a lot of these got messy.

It's one thing when we're talking about religion or sexual orientation or race or disability, and that's Colorado's, but it's another when we're talking about political ideology. And that's where you all of a sudden under Colorado's logic, you have that singer songwriter who now has to perform their song. If they're willing to perform it for the DNC, they have to perform it at the RNC. Yeah. And you know, the interesting, I found the discussion of the, it's a wonderful life hypo, really a waste of time. Why? Maybe, maybe I'm not analyzing this correctly, but it seemed to me that the answer to Justice Jackson was, okay, if you're selling a service of Santa photos and you also serve sell a service of period accurate. It's a wonderful life recreations that period accurate.

It's a wonderful life recreations. That's purely expressive. And that's purely expressive. And you may object to the period accurate element of it when, you know, you're going to say, well, to be period accurate, you're going to have white people. You may object to the period accurate, but how is this hypothetical different from some of the other hypotheticals asked of Kristen before that were involving race or involving disability. It struck me as sort of the answer was pretty simple that if it's a period, if they're selling period accurate reproductions and you come in and seek a non-period accurate reproduction, then that's not the kind of business the state can compel, the kind of speech the state can compel. I don't know. I just found it to be... Interestingly, Colorado might agree with you there. If you say that what you offer are period accurate pieces, according to Colorado's brief,

of course, then you don't have to offer something that's not period accurate. Now, whether Colorado would actually agree with that in this example, that you're a mall Santa who only offers services to white children, but you're like, yeah, but that's what my business is because it's period accurate. Despite Colorado's brief, I really question whether they would follow through with that in reality. But that's the

problem with these is that in reality, I just really doubt some of these answers. Like I, sorry, I doubt the answer to Justice Barrett's question. I kind of think Kristen Wagner's first answer was correct. That if a heterosexual couple wanted to say nothing about our gender matters, wanted to say nothing about our gender matters we found each other and that's what's important i don't know i don't really know that that's getting turned away or the divorced couple or whatever well and the thing is if if you have the argument that okay i believe all marriage marriage fundamentally is irreducible to opposite sexness. And I might have a view that exactly matches that, that, you know, the no-fault divorce regime is fine and all of that is totally cool, but opposite sex or same-sex marriage is a bridge too far. That's a constitutionally protected idea,

even if it's not consistent, say, with historic Christian theology. if it's not consistent, say, with historic Christian theology. So, yeah, I think, you know, so there's two, there's a way in which Christians, yes and Christians, no, were both accurate to this extent. The yes would be, yeah, she would do that because in all actuality, her view of what's fine and appropriate for marriage is really, really expansive, except when it comes to same-sex couples, or that the answer is no, because if you really drill down into her precise worldview, whatever that is, and it's not really the state's business, that doesn't match her actual worldview. But I think from a legal standpoint, the real issue is, is this speech? And if this is speech, then does the state get to compel it? And that's the key question.

It's not, is this bad speech? And so much of the argument was, is this bad speech? I agree. You're right that I think what I found unsatisfying is both sides arguing to try to prove that there was bad speech out there. And it's like, yes, everyone knows that. So which side gets protected? Which bad speech? And I think I disagree with you, though. So both sides stipulated that this was speech. The Tenth Circuit found that this was speech. Now, hilariously, the Tenth Circuit found that it was compelled speech and just had their monopoly of one. And nope, it didn't come up. Not once an argument, the monopoly idea. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day

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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. I want to go through a couple more hypos and then I want to do the legal, the real legal questions that the justices actually were struggling with at various points in this.

So one, we should talk about Kagan's hypothetical because Kagan said that while clearly she does not like 303 Creative's position in this case, there is one version that she struggles with. And that is the idea that in the heterosexual couples case that 303 Creative writes on the website, God blesses this marriage. writes on the website, God blesses this marriage. And that in the homosexual couple's case, the designer has to then write, God blesses this marriage, something that she disagrees with. And Kagan's point is, look,

most of these websites are where the wedding is and what the registry is and the love story of the two people involved, frankly, is their story and not 303 Creatives. Asterisk that, because I do disagree with that. But she says, when it says God blesses this marriage, that's an opinion. And I am uncomfortable with the state demanding that the website designer here put that on a website

for a marriage that she doesn't agree with. And she's, you know, the answer from Colorado Solicitor General was, well, first of all, this is not a free exercise case. This is a free speech case, which is true. They were actually offered the opportunity to take either or or both questions for certiorari. They only took the free speech question. They did not take the free exercise question. And Kagan's like, I know. And I'm trying to think of some other example that doesn't implicate religion at all. But the point is, who's saying that?

It's not the couple the same way that how they met is or where their wedding is. Clearly some third party is saying, God blesses this marriage. And you have to kind of assume the third party is the website designer. So can Colorado make her say that? And it was the only moment of the entire argument

that I actually enjoyed because the justice showed their work and said, here's what I'm struggling with. I want to come this far, but no further. How do I draw a line for that? And Justice Jackson chimed in later on and said, well, what if we just draw the line at that? And it's like, okay, but that's not, you can't, I don't know how you draw a logical line with opinion versus fact. That's not how that works. Some other moments in the Colorado Solicitor General's turn at the podium.

in the Colorado Solicitor General's turn at the podium. This was, of course, the moment of levity, David. Justice Alito has a lot of this argument time, a lot for the Colorado Solicitor General. And at one point he says, I want to walk you through some of the hypotheticals brought up in an amicus brief by Josh Blackman, friend of the pod. So one was, for instance,

Jewish wedding website, basically two Jews getting married, no problem. A Jew marrying a Christian. Do they still have to do that website? And he's like, I mean, in short, the answer is yes. And he's like, even though many in the Jewish faith believe that intermarriage is destroying the Jewish faith and yada yada, he's like, yep, too bad. Then he's like, okay, what about J-Date? You know, the guy

asked him to make a J-Date website for him. He's like, yeah, he has to do that. He's like, and Justice Alito says, and my understanding is that's a Jewish dating website. And Justice Kagan chimes in and says, it is. Everyone kind of giggles for a second. He goes, well, let's see if Justice Kagan's heard of this next one. And he says, how about Ashley Madison? And he's like, just to be clear, I was just saying that Justice Kagan knows a lot of things. Not that she would have firsthand knowledge of Ashley Madison. Which isn't Ashley Madison. That's the finding of an affair, right? Yes. Yes.

Yeah. Yeah. Okay. Inter extramarital affairs. Although I'm not sure. I don't think both parties need to be married. I think if you want to find a man who's married, you can get on Ashley Madison, even if you're single.

Okay. Anyway, just as Kagan, it sounded like from the audio, found this to be pretty funny. It sounded to me like the courtroom found it to be incredibly awkward and they weren't sure whether to laugh. I at least felt incredibly awkward and wasn't sure whether to laugh. I laughed. I laughed out loud. Yeah.

And so does this, you know, Jewish website designer need to create the Ashley Madison write up for this person who wants an extramarital affair? Answer appears to be yes. And then he said, okay, now I want to take the mall Santa example. And that other Santa down at the other end of the mall is black. And a white child walks up with a KKK costume. Does he have to take a photo with the KKK child? does he have to take a photo with the KKK child? And this answer from Colorado was, well, that's not on the status, the racial status of the child.

And Justice Alito goes, are there a lot of black children who wear KKK costumes? He's like, I'm sure there are. Well known that a lot of black, and the sarcasm was maybe a little much on that. It was very spicy Alito. Let's say that. Yeah. I found that actually

interesting because the the clan analogy is interesting because yeah you can say for example what we're targeting is the the clan costume isn't the protected thing that's right race of the person is the protected thing. But then when you say that, wait a minute, Laurie Mason says, or 303 Creative says, it's not the protected thing is, what we're talking about here

is the same-sex marriage, which the public accommodation statute doesn't protect. It's protecting the status or identity of the customer, right? So isn't that actually a good analogy? Isn't that actually a good comparison that regardless of, so you could have a straight wedding planner who's asking for the creation of a same-sex wedding site and, or you could have a, and they would say no, 303 Creative would say no, but then you could have a and and they would say no 303 creative would say no but then you could have a gay wedding planner ask for the creation of a of a opposite sex marriage site and 303

creative says yes even though the customer it's their acting in response to a gay customer so i thought that that was actually a better analogy than some of them but also a good example of why it was such an unsatisfying oral argument, because we never fleshed any of that out. No. In fact, it's much more similar to the scenes from Santa. The photographer takes pictures of everyone. In this case, 303 Creative will make websites for gay people all day long, as long as it's

not a gay wedding. But if you're just a gay person who wants a website to advertise advertise your widgets or whatever like no problem happy birthday website part of her her thing where she wants to make wedding websites also i guess um and that's where the kkk white child or the scenes with santa historically accurate pictures will by definition discriminate against someone on the basis of race and both are bad except one is bad because you have your child dressed up in a kkk costume and one is bad because you're a monster who refuses to take photos with black children but here's to your point david it turned in more into like can i come up with bad speech that this hurts or protects instead of let's just talk about the logic of this um in which the answer is to your point is it the status or is it the speech and it

was shocking how little time we spent on that so little time yeah so little time. Yeah, so little time. And this gets me to my last, well, two more, one from Kavanaugh and one from Barrett. Brett Kavanaugh talks about the publishing house. Does a publishing house have to publish books by pro-life authors, for instance? And here, sorry, not, let's, he changed his hypothetical. This was another problem. Many of the hypotheticals changed over the course of the discussion. Let me use his gay marriage hypothetical. They don't turn away gay authors, but they do turn away books on gay marriage.

And let's say in this case, it happens to be anti-gay marriage but you could come up you could flip it and do the exact opposite right uh you know how does that work i thought that hypothetical was actually just like two on the nose it's the same thing yeah but i think we feel differently about publishing houses yes uh and then of course um this was the best hypothetical of the whole day damon there is is a newspaper that is a for-profit newspaper. They're a gay rights advocacy newspaper. And part of that is they do wedding announcements. And so you pay them

and they publish your wedding announcement, but they only publish gay wedding announcements because that furthers their beliefs and their missions to, you know, highlight, you know, the power and love stories of gay couples. And Justice Barrett was like, so can they turn away heterosexual couples' marriage announcements? And after some actual fairly minimal hemming and hawing, David,

the Colorado Solicitor General said, no. Right. That, you know, the New York Times can't celebrate Gay Pride Month by only doing same-sex wedding announcements that month. That's sort of a shocking answer by the Colorado Solicitor General and one that I thought helped his cause, actually. Yes, that is what we're trying to do here. And his point was, look, these political ideology cases, the singer-songwriter at the RNC versus the DNC, I think those are harder because of the compelling interest. That the state's compelling interest

is different to protect political ideology than it is to protect invidious discrimination on the basis of one's status, basically. He's like, so yep, we have a compelling interest in making the gay rights newspaper publish same sorry, different sex wedding announcements. But we really don't have much of a compelling interest in making that songwriter perform for Republicans if they performed for Democrats. Good, good answer, I thought, and maybe one of the strongest of the entire argument yeah i mean i

think that's a he was owning it yes it helped that's a good answer because he's owning it i don't know that it helped uh because it made it quite clear the breadth of the state's argument here like he was very crystal clear yeah yeah it has. It has, it has bonkers results, but Colorado is saying that like, yes, I understand. But if we're going to fall in one side of the ledger or the other, Colorado has a compelling interest in preventing invidious discrimination on someone's status that they can't do anything about. And so, yep, that's what it's going to be. Uh, so David, here's the two things that I think this case is on. Okay. To a lesser degree, public accommodation. Because at every hypothetical, Colorado kept fighting back and saying, yeah, but that wouldn't be a public accommodation. And finally, I think

it was Justice Alito who was like, so wait a second. So all of these things that are hard aren't public accommodations suddenly, and all the things that are easy are clearly public accommodation. Public accommodation we have held is incredibly broad. That's the Hurley case with the parade. They found that that parade was a public accommodation. And his answer to that was, in Hurley, everyone could march in the parade, but it was about who could hold the banner. Here, not everyone is allowed to march in the parade. Fascinating, because I think actually it's exactly the same. She serves, to your point, David, gay customers. It's just this protected thing about weddings,

and that's holding the banner. And that's what's so similar to Hurley. But the fight over the public accommodation, he fought it on the newspaper hypo. He's like, well, that wouldn't be a place of public accommodation. And she's like, again, you made public accommodation law really broad in your state, basically a commercial enterprise. Even if you turn away some people because you are busy, you know, plenty of places have so many clients, they can't serve everyone. That doesn't make you not a place of public accommodation. It's basically turning away people based on their status. If you've got too many clients, nope, that still would make you a

place of public accommodation affected by this law. So A, that public accommodation problem that Colorado has. And B, then on the other side, incidental speech. And this is the fair part. This is the military recruiters on law school campuses. And this was mostly teased out in the Solicitor General's argument where Kagan says, it's not just that the military recruiters were allowed on campus.

These schools had to send out emails. They had to, you know, change their message. And Kagan's like, so isn't it actually the same as the wedding website? Because the school had to say where the recruiters were going to be. And here, the website designer has to say where the wedding is going to be. So the status as a military recruiter or the status as a same-sex couple is not compelled speech.

It's speech incidental to conduct. And so that's your hurly public accommodation struggle versus your fair incidental speech that again, I think our two and a half hours would have been much better spent if everything had been under those rubrics instead of Senate hearing-esque hypotheticals and filibusters by justices. Yeah. And let me say one thing about the hypotheticals. One thing that was striking to me about the hypotheticals is how divorced from reality they were. So a lot of, and that's, look, this is a thing that law professors do,

that judges do. They will ask you hypotheticals that you're almost certainly not going to encounter in the real world. And as an advocate, it kind of presents a bit of a challenge in answering hypotheticals, such as I'm doing, it's a wonderful life period

photography, right? Okay. Sure. That's out there somewhere maybe. But it presents a challenge for the advocates because something inside you rebels, wants to scream out. Can we talk about the real world? Can we talk about what actually could realistically happen? But instead, you're sitting there talking about, well, I won't design websites for two people who are disabled, which I've never heard of anything like that in my life. But I suppose somebody could imagine that. And that's one of my issues with the hypotheticals in this case was how much time was spent on stuff that isn't what the law is going to be dealing with. And I thought Kristen, at one point she said this, which I think is a, you know, it's something that helps refocus the discussion, but the justices seemed unsatisfied

with it, which is these things you're describing are edge cases. This is not the edge case. This is not, I mean, this is speech that's it's been agreed to that this is speech. And I just find it. And look, if you're an advocate and you're, you're just getting in fielding increasingly wild hypotheticals, you're in a box because obviously the judge is interested in it. And if the judge is interested in it, then you got to be interested in it too. You, you know, and they get irritated and we've seen them get irritated. Well, they'll say, don't fight the hypothetical, right? We've heard that in other cases, don't fight the hype. You're fighting the hypothetical. But I, the, the sheer breadth of these things and the unreality of them i just find it really

unhelpful and it puts it back in that i love the way you framed it sarah the senate hearing category just put it in a senate hearing category more than a legal analysis at least at least to me but you know i hate i hate yeah yeah me too i don't watch them. I mean, I've been in the audience for many of them, but I try not to even watch those. I thought she sounded defensive at points unnecessarily. So I thought it was a bad posture for her to be in. And I was unsatisfied by that answer. You're presenting an edge case, but this isn't one.

Yes, but unlike so many other cases, for instance, in the criminal law context, the whole point of ADF bringing this case is to push the law out on those edge cases so yes you have to struggle with the edge cases because that's what this is actually about you know this is brought again we talked about the rightness question she's actually never turned away a gay couple because she's never had a gay couple because this company doesn't exist actually in terms of what we're talking about here. So don't then say that this isn't an edge case. Your whole point was to bring a pre-enforcement challenge. That's because you want to litigate the edge cases. So I thought

her tone and don't get me wrong. I am the exact same way. When someone starts arguing with me, my voice gets very, what's a word that works on a podcast that children listen to? Itchy. My voice gets itchy. Itchy, itchy.

Itchy and defensive. But that's what you have to train yourself not to do. And I thought that toward the end of her argument she was doing herself a disservice by in tone calling the hypothetical stupid or saying that the edge cases didn't matter when that is what this case is about yeah i agree that a pre-enforcement challenge you're trying to establish a legal rule so therefore you're going to have there's just going to be a broader discussion of hypotheticals because the case itself is kind of sort of a version of a hypothetical. That's right. And her test was one, is it speech? Everyone stipulated that this was

speech in this case. And two, does serving this customer change the message? And obviously their answer to that is yes. But in that case, you have gutted public accommodation laws, in my view. And I think we can have a discussion like, yep, where public accommodation laws run up against the First Amendment. One of those two things is more of a compelling interest, the individual's speech or the government's interest

in preventing discrimination through its public accommodation laws. I actually don't have a problem if the answer is speech and KKK child doesn't get their picture with Santa. And to the really gross point about the, it's a wonderful life or the eugenicists who wants to have websites that don't help disabled people. That's fine. We just all have to agree that that speech, not that specific speech, but the concept, the ordered liberty concept of speech is more important than the government's interest in preventing discrimination. But I will say that, you know, less than 50 years out from Jim Crow. Yeah. It's hard to argue that the government

doesn't have a pretty compelling interest in its public accommodation laws. I get that we don't live in Jim Crow anymore. I do. But we're not that far out. Yeah, yeah. We're not that far out. And I do think, you know,

it was interesting Kristen said she wouldn't be there defending the caterer. Right. She did say that. Did you hear that? Yeah, she, on my past hors d'oeuvres example but again didn't you find that a little bit much like so you would defend the cake maker and the website designer she notably didn't say anything about the jeweler but their reply brief i think

does say like to the extent it would be a whatever. Like there was some exception there, but the past hors d'oeuvres, no, that's ridiculous. Is it? Well, and part of it, you can actually circle back and say, look, there's, there's controlling Supreme court authority when it's coming to things like sandwiches and it's Newman v. Piggy park, you know, this first amendment analysis. You make the sandwiches and people come in and buy the sandwich. In this case, Make the sandwiches and people come in and buy the sandwich. In this case, the caterer is at the wedding and maybe each spanakopita is like two intertwining rings or something. I don't know.

Or maybe they're in the shape of a cross, except in one version, the caterer is working at a wedding and in the other one, they're working at a KKK rally. Really? They can't decline one of those? Yeah. They're both crosses, David.

They are both crosses. they are both crosses they are both crosses um but what i think that you saw was kristin was trying to articulate the law has already said that there's a services versus speech distinction it hasn't fleshed this all the way out and that services versus speech has not been fleshed all the way out. But what we have here in this case, we know is speech. And what we have in hypo after hypo after hypo that's been presented, both it's designed to make Colorado look bad and designed to make three or three creative look bad. Those hypotheticals are all speech. Now, some of them, the interesting ones are, where's that line between services and speech? And this is something we talked about when we talked about Masterpiece Cake Shop. We've talked about it in the context of the run up to this case.

That's where it gets hard. That's where it gets hard. And that's Hurley versus Fair. That's are you marching in the parade or are you holding the banner? Are you allowing the recruiters on campus and sending an email to tell students that the military recruiters are on campus? Or are you helping the recruiters match their message to your students by telling these students why the recruiters could really help their career? Yeah. So that's what's hard.

And unfortunately, a huge part of the oral argument was about just the pure speech part of it. Isn't this bad? Yeah. Isn't this bad either way it turns out? Yes, I agree. Either way this case turns out, there are bad things that could come of it. People's speech being stomped on or some really, you know, gross examples of discrimination that there would be nothing to do about at law. Yep. Both of those are bad, but we do about at law. Yep. Both of those

are bad, but we got to pick one. Pick one. Pick one. We stomp on people's free speech and make them do stuff that they don't want to say, or we have discrimination that you can't do anything at law about. Those are the two options. And I wish there had been more of the argument about that. So David, I said, I thought it was 6-3 with maybe a secondary Kagan dissent on her point about God blesses this marriage. But the chief was pretty clear. The solicitor general basically, you know, you say, may it please the court. And then after he gave his initial opening said, and Mr. Chief Justice, I mean, his argument was geared so much toward the chief. The chief seemed pretty clear on where he was. He said, isn't this totally different than fair

because the speech itself is her objection as opposed to the real objection by the schools was having the military recruiters on campus in these otherwise empty rooms. Kavanaugh didn't seem to be wavering in any way. He seemed respectful of, again, we're choosing between two bad things, but like not a close call over which one he found more compelling. I don't see a fourth vote, let alone a fifth vote.

I agree with you on that. I think this is 6-3. The only thing that is really interesting to me is does Kavanaugh, do Kavanaugh and or Roberts do a concurrent, in addition to the potential Kagan concurrence as part of the three, but saying here are some circumstances where I think three or three creative could win. what we've seen of late, like a Kavanaugh concurrence, like we saw in New York State Rifle and Pistol or in Dobbs where it's, okay, we've ruled, but here's, let me discuss some of the edge stuff

and the edge stuff hasn't really been resolved or I'm gonna give you some indication of where the edge stuff would go. That's one thing I'm very interested in. And I hope it'll touch on two things. One, the distinction between public accommodation laws that touch on invidious discrimination, on status versus political ideology,

those 19 states that protect on political ideology. Frankly, I'd like to hear the dissenters talk about that perhaps. And second, the Barrett example, right? So if you can show that this is only on status of the individual and not on the message of the speech

and that case comes up here, you're going to lose. This is a pre-enforcement challenge. So we're taking everything she says at face value. But if, for instance, you're doing the heterosexual marriage where they say gender doesn't matter and yada, yada, yada, making it pretty clear that actually the only thing you cared about was the status of the people as gay, that that's a different case, not the case we're deciding today. And I think that you're right that we could see a concurrence on that question right right well very it was i would describe it as a little bit painful to listen and listen to oh yes um and not that interesting but fun to talk about. Eh? I give it one star. I liked it.

Not this pod. I give the argument one star. That was a one star argument. For a case that had so much buildup that you and I were so looking forward to, to grapple with the difficult areas of the First Amendment, and this is what we got? Not the Christmas present I wanted.

Maybe the more discussion on independent state legislature will be more fun that's going to happen wednesday and you will have a pot about that on thursday yes indeed so that's a good well that's a great way to preview for the ending so yeah come back thursday because more explosive supreme court arguments to talk about. Get it? More? More? More. Oh, that's good. That's good. Absolutely. And as always, thank you so much for listening. Please rate us. Please subscribe.

Please check out thedispatch.com and please come back on Thursday where hopefully it will have been a more interesting argument that we will have an equally good time addressing hard to be a less good argument in my view all right there you have it we'll be back thursday Bye.