Advisory Opinions - The Law Under Trump

Episode Date: November 7, 2024

Following this week’s election, Sarah and David explain what will happen next with the criminal cases against Donald Trump and review potential Supreme Court shortlisters. The Agenda: —Criminal cases against Trump —Civil cases against Trump —Supreme Court nominations —Who will retire? —“Now let him enforce it” —How will the left respond? Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur. That's David French. And David, we took an extra 24 hours because frankly, we have two hats. We have our sort of political pundit hat and this our legal hat, our most joyful flagship podcast hat. And we just wanted to give it a tap tap taparoo. But this will be our post-election episode. We're not going to talk about Supreme Court oral arguments. We're not going to talk about Supreme Court oral arguments. We're not going to talk about circuit court cases.

We're just going to talk about the effect of this election on the legal system. So let's start with the most micro part of this, which are Trump's civil and criminal cases. Yes. So, for instance, in theory, in the New York case that he was convicted on 34 counts of falsifying business records, that sentencing was delayed until after the election and is now set for next week, basically, end of this month. We also have the classified documents case, which was dismissed, but that was being appealed, and the January 6th federal case.

Talk about those as well. And then of course, the Georgia state case. So David, the federal cases are really easy. Yeah, this is easy. They're going away. They're gone for any number of reasons. I think that a bunch of reporters sort of were hoping for some massive clash on the federal cases

that Trump would have to come in and fire Jack Smith and they'd have to dismiss these cases. DOJ is going to follow DOJ policy, which has been in place since Nixon. The Department of Justice does not indict or pursue criminal charges against a sitting executive. So they are already winding down those cases. It's just a matter of when they file their papers dismissing the charges. I've heard reported that Jack Smith just intends to leave the Department of Justice. But that won't be a big clash. It's just going to go away.

Yes. It's going to just, what's the phrase, not with a bang, but with a whimper. Now, in theory, Jack Smith could release a report like the Mueller investigation or Rob Her. He is a special counsel. And in theory, he owes a report to the attorney general. That report though, of course, can be very short. It can say, we dismiss these charges based on the Department of Justice policy.

I don't know what they'll do. I hope that they don't. And only because we already have the indictments. Like we don't, it'd be different if we didn't know what they were investigating or what they had found. We have all of that information. I don't know what a report will do except make the Department of Justice look more politicized under this administration? Well, we have a January 6 report from the January 6th commission. We have the indictments. We have the additional briefing.

I mean, there's just a giant amount that's already out in the public square. And I sincerely doubt that there is something else lurking, especially because he filed a brief before the election. Remember, we talked about this. And the brief before the election had some additional details, but if he was sitting on some giant piece of information or evidence and it's not in the indictment,

that's on him, right? That's on him. So, no, I agree with you. We have the indictment, we have the January 6th report. That is a thoroughly, thoroughly, thoroughly investigated chapter of American history. Can we just take a little side jaunt on this? Do you believe now knowing what we know that bringing those federal indictments was a mistake

politically, not morally set that aside, just politically? Do you think it helped Donald Trump to A, to bring the indictments and B, the things that Joe Biden sort of kept accidentally saying about them that insinuated that they were for the purpose of hurting him politically. Of course, there was the timing. The indictments weren't brought until after Donald Trump announced he was running for office. You had Joe Biden just a few weeks ago, sort of agreeing with lock him up. Will history say that that was corrosive to the rule of law? No.

I think the problem, if we're looking at the indictments, I think there are two problems. Problem number one was the New York indictment. That was the first indictment, remember. That was the weakest of the four cases by miles. I think as a political matter, what that did is it cemented in the minds of the four cases by miles. And so I think as a political matter, what that did is it cemented in the minds of people that these and many people, not everyone, of course, but it's cemented in the minds of many people

that we have political prosecutions ongoing. And that first indictment featured an awful lot of strong Trump critics, including number of folks that we, that have been sort of Never Trump from the beginning, folks who are Johnny-come-lately to Never Trump. Folks on this podcast. Or folks on this podcast saying this was a bad case.

You know, right before the verdict, I wrote this piece for the Times. It was like, I hate this case in every direction. Like, I hate the case in the sense that it has these terrible, lurid facts about how Trump acted and nobody cares. I hate that. But I also hate that they filed this stinker of a case, the legal claims to the case were weak.

And so I think what you had was that first prosecution was weak, it never should have been brought. And I think that set a narrative on the other prosecutions. Now, on the federal prosecution, to me the problem was timing. This is something we've said a million times. These January 6, 2021 happens, and it's more than two years.

It's more than two years before there are charges filed. And in many ways, I feel like the Biden administration kind of didn't want to do it until the January 6th commission came forward. And so the timing here is, that is the primary reason why this case did not come to trial before the election. That is the primary reason. It is when it was filed. And a lot of people are, you know, in the aftermath of the election are blaming the Supreme Court for delaying the trial to hear the immunity arguments. Now, the reason the trial did not happen before the election was when it was brought. And on this podcast, when it was brought, you and I both said, boy, this is gonna be hard to try before the election.

So I think the initial, the original sin of the indictments was the New York case. And then compounding that quite frankly then was the absolute amateur hour Georgia farce. Now I know they have some guilty pleas there, but that amateur hour Georgia farce. Now I know they have some guilty pleas there, but that amateur hour Georgia farce with the affair and with the, you know, I'm not going to say we don't have proof that she lied about the fair, but lots of testimony that strains a lot of credibility about it.

It just made it look like a, you know, a clown show. And so I do think that there were political mistakes around it. Foremost, both political, legal, and by the way, moral, was that original New York case. So that's my sort of political gloss on the four of them. I think I agree with large chunks of that. I think probably our ending place is a little bit different. I think that history will say that politically,

those were a huge mistake, the federal cases even. Politically, I'm not, this is, we've talked morally about these cases ad nauseam. I'm not gonna go back into that. But that it, A, just from a purely Machiavellian standpoint, it made it do or die for Trump. If he lost the election. That's a great point, yeah.

He was going to prison potentially and certainly facing real criminal jeopardy. And so to make it do or die, I mean, if you've seen a trapped animal, right? Like it really raised the stakes for him. And so, and I heard this from Trump campaign folks all the time that he knew the stakes of this election. And for Republican, I mean, base Republicans here,

MAGA type folks, it made it do or die for them too. Because whether you think they were right or wrong, they believed that the Biden administration went after Trump because he was running, because he was their political opponent, and that if they succeeded, it would lay the groundwork and the precedent for going after other political enemies. And so, by bringing these cases, I think that they raised the stakes on the right

and really helped Trump boost turnout in that do-or-die part. I then think politically, it also— it just didn't help the Biden administration, right? We knew politically that this whole like, January 6, Trump is a danger to democracy was actually cutting about evenly, maybe cutting worse against the Biden administration than it was even against Trump. I did, by the way, I saw, I swear to you, I actually saw an actual panel of Democratic strategists saying that they just needed to make the case that Trump was Hitler strongler.

I mean, oh man. Okay, so that for those two reasons, I think history will say that bringing these cases was a mistake because you knew you wouldn't actually get to trial before the election. And therefore, what did you actually accomplish? You make Trump want to win more, and you made him more likely to win as well. And so, what was the point of this? Very little. Yeah, I think the politics of the cases were a rounding error compared to inflation and compared to the migrant surge at the border.

I can't... But... Except for Trump, right? inflation in compared to the migrant surge at the border. Except for Trump, right? Trump had such a high energy level. And remember, they really were telling him every day, don't forget, sir, you have to win this. And I think that does affect someone's campaigning ability and waking up when the alarm goes off instead of hitting snooze. That's true.

I hear you on a actual policy in terms of what people were voting on. Yeah. I'm hard pressed to disagree with that. All right, let's talk about the state cases really quickly. Georgia is obviously sort of on hold, but this New York sentencing, for instance. Now, the Department of Justice, federally,

of course, doesn't have anything to do with these two cases, but there's federalism issues, right? This idea that, of course, a state also can't prosecute a sitting executive. It's never been tested. We actually don't have any real opinions on this that I'm aware of. But I think, structurally,urally in the Constitution for all the reasons, well, the reason that the Department of Justice can't prosecute a president is because of a unitary executive theory as well, right? But there's the legal theory for the Department of Justice is obvious and plain and right, yeah. But part of that was also that you can't bring criminal process against the sitting president because it would undermine his ability to execute his office.

That clearly adheres to the states. And so the Georgia case, I think, is put on hold until he leaves office. Should they want to pursue it afterward? I think they would be able to. The New York sentencing thing is a little different because he has appeals pending, David. They certainly can sentence him and then simply put the sentence on hold until he leaves office. But I don't think that's what Judge Marchand's going to do. I don't think he's going to do that either. I don't think he's going to do that. The question I have is, does he impose any penalties at all?

Does he, you know, does he just do probation? Does he do, or does he just dismiss the case? No, I think he just delays it. Yeah, I think he just says, obviously a president cannot be sentenced to anything. His appeals are pending. Those appeals will be put on hold as well. So it's basically just you put the whole thing in a freezer

and like Encino Man will defrost it. Right. In 2028, we'll see who the district attorney is at that point, whatever else. But I think it just goes in the freezer. And I think the Georgia case is just going to die completely. At least the part against Trump in all likelihood. Because where we are now is we don't even know if we've got a prosecutor.

And then if we don't have a prosecutor and the new prosecutor comes in, the new prosecutor can simply dismiss the case. And so I find it very difficult to just the mechanics that the Georgia Courts of Appeals are going to either permit the current prosecutor to stay with all of the mess of the testimony, by the way. I mean, when I said strains credulity, a lot of it, I mean, it strains credulity. So there's gonna be, you know,

once the Georgia Courts of Appeals sort this thing out, we're gonna be deep into President Trump's term, and then they're not gonna, no, I just have a hard time seeing this case going forward at all. And so, I think as a practical matter, just as a practical matter, not their technical legal ways in which Trump could

continue to face legal jeopardy. But I think it's a practical matter that legal jeopardy, even the state's is done. Okay. So then we have the civil cases, we have the E. Jean Carroll case and the case brought by the New York attorney general. Both had huge judgments against Trump that are being appealed. We do have I think relevant case law on Civil cases against the sitting president and what those cases basically say is that is not distracting him from executing the duties of his office I think those will move forward On their appeal and on their appellate track, just fine. What do you think?

Yeah, that's Clinton. That's the Clinton president. So Paula Jones deposition, January, 1998, the Paula Jones deposition was in a civil case brought against him for acts before he was president, but it was a civil case while he was president. And the court allowed that to go forward. And his deposition in the civil case

is one of the things that triggered impeachment later on. I had a fun time talking to my undergrad class this week about taking them through the 90s and how the 90s laid the groundwork for right now. And it was so funny, Sarah, because not one of them, not one of them was born when all this is playing out. And so, you know, I'm telling them what is essentially ancient history

and their eyes were popping out of their heads. They need to go listen to Leon Sloburn on Clinton. Yeah, yeah, I recommended that. I recommended the American Crime Story FX version of it. And then our recent Bush v. Gore podcast came in really handy because they could not believe that. So, you know, after 2020, you know, they're used to, oh, okay, it's a voting controversy and it's not a real thing, right? That was sort of, you know, that's just what people raise is these controversies.

And they saw, I showed them the butterfly ballot. Yeah. It's just, yeah, really fascinating to run through that. And then you realize that... Yeah, what if a nation of 350 million people come down to 500 votes? 500 votes. 500 votes. It's just a tie. What do you do?

I know, I know. Absolutely, absolutely amazing. And then you think of, imagine the 90s controversies on top of the 2020s political culture. Yeah, it would have been 10 times worse, but the 90s controversies helped create the 2020s culture and we forget that at our peril. But they were particularly amused by the serial resignations of Republican speakers over adultery

during the impeachment of Clinton. All right. So that's the micro of the cases against Trump. I thought we'd spend just a moment on the Department of Justice under a second Trump term. And we'll take a quick break to hear from our sponsor today, Burford Capital. Support for Advisory Opinions comes from Burford Capital, the leading finance firm focused

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Legal finance from Burford, it's corporate finance for the legal department. Burford is publicly traded on the New York Stock Exchange and top ranked in its field. To learn more about how legal finance from Burford can help your business, visit BurfordCapital.com. Hey, this is Mary. This is Grayson. And we're the editors of the Morning Dispatch newsletter. Every weekday morning, we give you the news you need with your morning coffee, right to your inbox. Between quick hits and in-depth explainers, we cover a little bit of everything.

The economy, politics, foreign affairs, anything as long as it's worth your time. Plenty of outlets are just trying to bait you with outrageous headlines to get your clicks. We don't do that. We tackle the stories that actually matter. Cut out the DC jargon to give you the context you need to start your day. TMD is an ongoing conversation with readers as we walk you through the news that will still be relevant in six weeks and six months.

So join the conversation and subscribe to the morning dispatch at the dispatch.com slash join. For a limited time, you can use the code worthyourtime10 for 10% off your annual subscription. If you're already a member, go to the dispatch.com, click newsletters, and make sure you're subscribed to the morning dispatch. It's worth your time. So the first thing that has to happen is that Trump needs to pick an acting attorney general to take over the department on the day that he's inaugurated. If you remember, Sally Yates stayed in the position in the Trump term. She was a Democratic appointee under Obama. She then refused to execute the travel ban, as it was called.

And Trump then fired her, brought in Dana Bente, who was the US attorney for the Eastern District of Virginia at that point. And he stayed in place until Jeff Sessions was confirmed. I don't think there's going to be a Sally Yates type acting attorney general this time around. So let's talk about who their options are. Under the Vacancies Reform Act,

you can either have someone who is Senate confirmed in any position, currently Senate confirmed, or someone who is GS-15 or higher. And if you look- GS-15 is a rank in the civil service, by the way. Yeah, basically a pretty senior person in the department. So if you look at people who were Trump appointees during the first term, who currently fit that description,

they are currently in a Senate confirmed position or GS 15 or higher. You've got a few interesting folks out there. Curtis Gannon is one of the deputy solicitor generals. He is the most senior person in main justice at this point. He was in the Office of Legal Counsel during the first Trump administration. He is the most tried and true human being to the Constitution that is currently living, as far as I'm concerned, David. Nobody knows the Constitution better.

It is a more dedicated lawyer than Curtis Gannon, which could frankly cut either way, depending on who's making decisions in the Trump administration. You also have, for instance, Prim Escalona, who is a current U.S. attorney. She's an interim U.S. attorney down in Alabama. She was a Trump appointee during the first term in the Office of Legislative Affairs.

I gave this quote to Josh Gerstein over at Politico. It ended up being a background quote, as in it doesn't have my name on it, but like anyone who listens to advisory opinions will know that it was me. And in fact, I got many texts from people because my quote was, I wouldn't pick prim if you want to do shenanigans. That's a great quote.

Your name needs to be attached to that. That is, yeah. So that's another sort of model is picking a US attorney. It matches what they did last time, for instance. But prims down in Alabama, I'm sure she would be willing to serve for country temporarily by coming to DC, but that's a big ass when you got three kids. Okay. The other model is Andrew Ferguson, who's over at the Federal Trade Commission.

Andrew Ferguson was also a Trump appointee in the first administration. Here's what's interesting about Andrew, though, and why I actually thought this would be a fun conversation to have, David. OK, so Vacancies Reform Act, five USC 3345 acting officer, notwithstanding paragraph one, the president and only the president may direct a person who serves in an office for which appointment is required to be made by the president by and with the advice and consent of the Senate to perform the functions and duties of the vacant office temporarily. Or notwithstanding blah, blah, blah, the rate of pay for the position described under subparagraph a GS 15 or higher. All right. So that's what I just described. Senate confirmed GS 14 or higher. There's no exceptions.

But the Vacancies Reform Act expressly does not apply to a member of a multi-member independent committee or agency like the Federal Trade Commission. So which one controls? The Vacancies Reform Act just says says you need to be Senate confirmed. Well, a member of the Federal Trade Commission is Senate confirmed. But the Vacancies Reform Act itself doesn't apply to the Federal Trade Commission. I actually think that doesn't matter.

That's about filling spots on the Federal Trade Commission. So I think someone like Andrew Ferguson is absolutely allowed to then become acting attorney general, but it is an open question. Yeah, that is interesting. No, I think I'm glad you raised that because that was one of the very first dramas of the Trump administration was the Sally Yates drama. And, you know, it's interesting, just on a broader point,

I really don't think we're going to see the kind of like hashtag resistance groundswell, right? In response to this new presidency, I'm seeing zero signs of it at all. I would say that the number one response that I'm seeing is sort of a sense of exhaustion and resignation as opposed to, oh, no, we have to absolutely activate right now. And so I think it's going to be, and as we saw, you know, people, there were some folks in

Washington who were boarding up, they were boarding up stores before. Schools were closed here, David. They closed a lot of public schools here and some of the private ones. Yeah, so I was seeing school closings, I was seeing boarding up of buildings and nothing happened. Nothing happened. And I've been hearing lots of reports from people

comparing and contrasting the emotional response to 2016 with the emotional response to 2024. And it's just orders of magnitude different. So I really think we're going to have a pretty routine transition. We had a routine, you know, we had a very routine, you know, a very routine concession. Pretty routine, other than sort of a degree of demoralization kind of response to the election. It's feeling like we're going to move into a more routine transition. Not to say that we're going to have a more routine administration, but it looks like

we're having a more routine transition. All right. So let's move to the Supreme Court. First off, there were a whole lot of people online on November 6th who decided Justice Sotomayor should retire that afternoon. She needs to announce it immediately so that Joe Biden can fill her position lest they risk another Ruth Bader Ginsburg problem where she gets sick in the next four years or something like that. She is the oldest Democratic appointee currently on the court. So I then would tell

you about Earl Warren. He was Chief Justice appointed by Eisenhower, but of course moved dramatically to the left despite being a Republican governor of California who'd run for the Republican nomination, which is why they put him on the Supreme Court, by the way. He tries to do a last minute resignation under LBJ in 1968 when he sees the writing on the wall. But it was too late because LBJ nominated Abe Fortas. That nomination ran into trouble and they ran out of time. nominated Abe Fortas. That nomination ran into trouble and they ran out of time. And so then Richard Nixon got to replace Earl Warren with Chief Justice Berger. So be careful when you have so little time left. That time can tick by quite quickly and then boom, suddenly Donald Trump gets to pick the replacement for Sonia Sotomayor, the one thing you were trying to avoid. Now, the pushback to that David is what if she makes her resignation contingent upon a replacement being confirmed, which is by the way what Earl Warren did.

Yeah. But in this scenario, she simply withdraws her resignation on January 19th if a new justice hasn't been confirmed. I think that would be bad. What do you think? I think that would be really bad and it's not going to happen. So yeah, there's all kinds of sort of wild suggestions that I saw in the heat of the moment on Twitter.

But the bottom line is I don't see Sonja Sotomayor going anywhere in these last few weeks. I just cannot imagine something like that happening. In all likelihood, Trump will appoint a replacement for either Clarence Thomas or Samuel Alito, if not both. But that's not for sure. I mean, we've been through quite a few recent cycles where aging Supreme Court justices stay on the court. So it's possible one or both of them retire. It is definitely not certain.

And by the way, just, and this could be a segue into sort of, okay, what if one of them retires? Who's upfront? Who's up next? They just, and this could be a segue into sort of, okay, what if one of them retires? Who's upfront? Who's up next? And by the way, if, if, if, huge if, the sort of conventional wisdom before the election is the conventional wisdom after the election, then you're talking about some judges like Judge DePar on the Sixth Circuit, Judge Ho

and the Fifth Circuit, who are, look, nobody on the left is going to be happy with a Judge DePar or a Judge Ho. But if you're a rule of law person, if one of your really, really big concerns like mine is rule of law, a Judge Ho, a Judge DePar nomination, that's good news. That's good news. That's good news. And so, you know, you may not agree with their legal philosophy, but these are individuals who are high integrity individuals and who are, you know, who have a very distinct legal philosophy that governs, who have a legal philosophy that governs their jurisprudence.

You know, I think that would be one of the bright spots of a next Trump administration, quite frankly, if one of those guys or one of the other circuit court judges that Trump has previously appointed, many of them are people who I think would be ideal Supreme Court justices. So on the Supreme Court front, unless he really truly goes rogue, I think we've got, you know, I think you've got a lot of stability to look forward to in the next four years when on that Supreme Court front. We don't, you know, other fronts we can talk about on the Supreme Court front, the conventional wisdom

says there's a certain universe of judges and they're good judges. So yeah, just first of all, on Seno Sotomayor, if she were going to retire, she would have happily done it in June when Joe Biden definitely looked like he wasn't going to win the election at that point. Right. Exactly. Remember, most justices announced their retirements right after the term. That would have been June 2nd. I mean, sorry, July 2nd this year would have been the expected announcement for any retirements,

which this past year was the nadir of Joe Biden. So yeah, I don't think that's going to happen regardless. I also think it is not great. I don't think strategic's gonna happen regardless. I also think it is not great. I don't think strategic retirements are a great idea regardless. I know there's not much you can do about it because if you wanna retire, of course you're gonna think about when to retire

and all of that. But making your retirement contingent upon someone being able to replace you in time, I think is particularly bad for the institution's appearances. On the likelihood of Thomas and Alito retiring, I think the likelihood of Alito retiring is higher than the likelihood of Thomas.

I think the likelihood of both is not low. It's not low. I mean, I'm not expecting it, but I would absolutely not be surprised. I mean, you know, Thomas is 76, Alito is 74. You know, that's a time when a lot of people retire, but at the same time, it's also a time when a lot of lawyers are still doing it.

You know what I mean? You go to a big firm and you've got a lot, you'll see a lot of lawyers, they might be coming in four days a week when they're 74, right, or three days a week, but you've got a lot of senior lawyers in big firms who are doing good work at that age. So, you know, retirement's a funny thing

in our kind of world, Sarah. That's true. The problem though, is that the Senate map in 2026 is very good for Democrats. And we don't know what will happen when the party of the president to vote on the nomination of a Donald Trump appointee made after 2027, for instance. To know who the replacement is going to be, you really want to know who's going to be doing the replacement.

And that's going to turn a lot on who the White House counsel is. That's usually the person who has the loudest voice in the president's ear on who that replacement is going to be. Interesting story, by the way, for the Bork nomination, which of course is this moment in Supreme Court history. Scalia gets that first spot that opens in 1985.

It's really Bork versus Scalia, and they arm wrestle that out. Interestingly, Scalia was viewed as the healthier of the two. Bork was known to smoke cigars and stuff like that. Scalia was just a little bit younger at that point. So then there's this next opening on the court, which was totally unexpected. They thought that was the end, that they'd get Sandra Day O'Connor and one more spot, which of course was Berger leaving,

so they move Rehnquist up to Chief Justice, put Scalia in Berger's spot, and then they're done. But Powell, surprise, announces his retirement. And now, of course, the Democrats have taken over the Senate at this point as well, so the whole world has shifted. And John Bolton gets word of this before anyone else. He's the head of ledge affairs at the Department of Justice. And so he needs to tell Ed Meese immediately, but Ed Meese is on a plane heading back from Europe and they need to get Meese to the White House to convince him to pick Bork over Kennedy

because the folks in the White House wanted Kennedy. And of course, Reagan was a, you know, Californian, Kennedy's a Californian. And so there's this race to the White House or to get Meese. They do reach him on the plane. There's a phone, I guess, at that point or something. So it's this dramatic story of how Bork is going to outflank Kennedy at that point because the attorney general is trying, Ed Meese, right? He is the theory of all originalism and remaking the court. So he cares deeply at that point. But generally, it's going to be the White House counsel. If I were to bet money at this moment, Mark Paoletta would be a good bet for White House counsel.

This is someone who's very close with Justice Thomas, for instance. You've seen him interview Justice Thomas, defend Justice Thomas on these ethical things. I think Mark Paoletta is very likely to be looking at the same short list that you are, David. He's going to want a circuit judge, by and large. This is not gonna be the, you know,

whack-a-doo list, as I've called it in the past. And David, I'd be remiss if I didn't mention my upcoming conversation with shortlisted judge James Ho at the Dispatch Post-Election Conference on November 12th in Washington, D.C. I think that's gonna be a fun one. Now, there is a question over whether Judge the Parr has aged out at the ripe, ripe age of,

he's 53 years old and will turn 54, I believe, in April. That means he can only give us, what, solid quarter century on the bench. I mean. Sorry, he's 55. He'll be turning 56 in April and 55 has generally been seen as the cutoff. So, you know. 55, Sarah, that's a tough age.

It's a tough age. Oh my God. And that's, so what you're saying is I'm about to be put out to pasture as well. That's right. Now, what's funny is like to have this hard and fast black and white rule, of course, if this is about life tenure, one should want some sort of life insurance style physical for all these justices like their temporal age is 55,

but their physical age is, you know, 52. What's the Garmin watch telling them? But these are absolutely the kind of things that are going to be discussed behind the scenes and that 55 cutoff is an interesting one. So A, the first thing we will know before there be any retirements or any short lists, we're going to know who the White House counsel is. And that's going to tell us, I think, quite a bit about who that Supreme Court pick could be.

Now, David, if President Trump did get to replace both Alito and Thomas, he would be the first president since Eisenhower to have five picks on the Supreme Court. The rest of the list, by the way, is pretty impressive. FDR, Lincoln, Washington, of course, gets 100% of the Right. Taft is on that list. And when I think about, for instance, FDR getting eight picks on the Supreme Court, it absolutely affected the institution. And I would argue it affected the institution

in the way it's supposed to. If you've got the American people picking one guy for four terms, the Supreme Court is supposed to. If you've got the American people picking one guy for four terms, the Supreme Court is supposed to be that darkly mirrored look on American society. It's not supposed to be politically responsive, but it is supposed to be sort of a lagging reflection, if you will. That's why the president appoints Supreme Court justices and the Senate has to advise. You don't want people just randomly selected. You know, like we've said before, the difference between a judge and a lawyer is the judge knows the Senator

and the difference between a justice and a judge is the justice knows the President or the White House counsel as it turns out. And so it is supposed to reflect our political moment to some extent. At the same time, I have concerns for the institution at this political moment, when our country does feel so split 50-50. Not that it's not fair, not that it's not constitutional. It's all of those things, obviously.

But that in the past, for instance, let's use the pro-life community. After Roe, they wanted Roe overturned. What they believed was that they just needed to win one more election and they could get justices on to overturn Roe v. Wade. Now, to be clear, they turned out to be wrong about that. When Casey comes up in the early 90s,

they should have the votes. They'd been appointing plenty of justices at that point. I remember that well, Sarah. I remember that well. But that's not my point of whether they succeed. My point is that they have hope. They're just one election away every time. And so you just put all your eggs into the next presidential election. And it's why Republicans were more likely than Democratic voters to be Supreme Court voters, even to this day. But that's a legacy of that early 80s pro-life movement

having hope to turn the Supreme Court. I'm concerned if you have five justices in their 50s that were all appointed by one side that the Democrats lose hope that they're one election away from turning the Supreme Court. And what that does to an institution, I think, could be quite corrosive and could really provide not hot immediate fuel for court packing, but slow burning, far more effective fuel

for something like court packing. I have had that exact same thought, Sarah, because the reality is Trump is going to, as you said, may end up with five justices all in their 50s by the end of this second term. And Republicans are going to be like, great, we handled that very shrewdly. We did this exactly, you know, we played by the rules.

We got our people in place, mission accomplished, stop crying, Democrats. And they had the institution for so long. They had FDR, then they had the Warren Court, arguably they had the Burger Court too. This has moved back and forth. It was a left-wing institution for a long time. What are you crying about?

Yeah, and so that's gonna be sort of the message to Republicans. Democrats, on the other hand, will sit there and say, wait a minute, we can win election after election after election for year after year after year, and it will make no difference at all. And by the way, this sort of five of nine is, you know, where you could end up with five of the nine is by one justice, six of the nine are from one side. Even though if you look since 92, the elections are evenly divided between Republicans and Democrats.

They've won the same number of presidential elections. And the popular vote arguments and all of that comes raging back in. And again, I would just point out that you never know what issues are going to pop up that don't match with the current culture war. So Republicans had seven appointees on the court in the 90s, and yet it was considered a five-four court. Eisenhower had five appointees on the Warren court. But the issues that people cared about really changed.

And so the Warren Court is considered a, not just left-wing court, but the furthest left-wing court we've had really in American history. Well, you know, and I'm glad you raised that because this is something that we've talked about a bit on this podcast, which is when you have the kind of realignment that we are seeing,

this ideological realignment where the Republican Party is becoming much more statist, much more, much more sort of planned economy, much more state intervention into the culture war, really becoming a mirror image in many ways of the Democratic Party and its view of state power. There's not a lot of difference right now between the Republican Party and the Democratic Party and their view of state power. And that was a big ideological difference for a long time. So where does it come down? And I use this as an example, but it's a great example.

The TikTok case involving the Blackout Challenge, two Trump appointees, an Obama appointee, both in agreement on that case. What's the ideological valence there? These are going to be some of the disputes that are going to be moving forward that don't have that old school, from the 90s forward culture war sort of salience. We have a couple of cases like that. We have the Biden Title IX case. Well, that probably will go away because those Title IX regs will fall away with the new president.

But we'll have the trans, you know, the trans health care for minors case. That's old school culture war. But outside of that, the ideological valence of many of these decisions is going to be very interesting in an ideological realignment. of that, the ideological valence of many of these decisions is going to be very interesting in an ideological realignment. Also, you know, I understand a lot of people think these justices, whether they're consciously or subconsciously partisan, will simply move with their team. I'm not going to disabuse you on every single issue. Let me tell you that Justice Gorsuch is the closest you've got to a libertarian

on the Supreme Court. He's not changing his views on the power of government. He's against it. Yeah. Yeah, that's what, you know, I'm glad you said that because we act as if these justices are just team players and they're not, I mean, look, I disagreed with Trump v. Anderson, Trump v. United States. We don't have to go back into that but it's just a fact and

this is something that I just wish more people would absorb. It is a fact, an indisputable fact that this current court has rejected its own quote, team time and time and time again. Um, it is just a Donald Trump is the president with the lowest success rate of any administration in the modern era. Both Biden and Obama had better success rates at this Supreme Court than Donald Trump. Right. So there you have it. So the sort of idea that they're just going to be team players, show me your work.

And if your entire work is the two Trump eligibility cases or the Trump eligibility case and the Trump immunity case, what are you doing with voting rights? What are you doing with the census? What are you doing with immigration? I mean, you just go through issue after issue after issue. And look, this court has proven its independence. And in many ways, nobody's proven their independence more than Amy Coney Barrett. The one justice who, if you were gonna say of the Trump III that maybe people on the left were most afraid of, has proven to be in many ways the most independent justice.

So don't assume you know how all of this is going to work out. The Trump administration was the least successful at the Supreme Court in modern history of any administration. And the Fifth Circuit was the most overturned, had the most cases overturned at the Supreme Court. So you can't look up percentages.

I'm looking at raw number of decisions. It was the conservative Fifth Circuit with eight, I believe. That might've been the term before. Anyway, the stat holds somewhere. I know it. Yes. All right, so David, last topic. What if Donald Trump, as we've just said,

loses at the Supreme Court on something he cares about and just decides to Andrew Jackson it. And it's like, interesting decision you've got there, Chief Justice Roberts. What you gonna do about it? And this is referring back, of course, to the Worcester v. Georgia case from 1803. It results in the Trail of Tears,

but the Supreme Court basically sided with Native American property rights in that case. And Andrew Jackson, probably apocryphally, Supreme Court basically sided with Native American property rights in that case. Andrew Jackson, probably apocryphally, but in spirit, said, Chief Justice Marshall has made his decision. Now let him enforce it. There was no enforcement of that. That's why it led to the Trail of Tears. This question comes around. The Marshall Court is such a good example. On the one hand, you've got Marbury versus Madison, where the Supreme Court is such a good example. On the one hand, you've got Marbury versus Madison,

where the Supreme Court is in its infancy, and you have Marshall being really politically savvy, basically saying that the Jefferson administration should have delivered the commission to Marbury, but there's nothing the court can do to force them, and so the opinion has no actual effect, and the Jefferson administration can kind of claim a win as well because Marshall, of

course, concerned that if they ignored him, that then the Supreme Court would sort of be a nullity. And then fast forward to the end of Chief Justice Marshall's tenure, and you've got this Worcester v. Georgia case where he basically is like, well, we're just going to say what the law is and let the chips fall where they may. Those are kind of the two extremes of Chief Justice's institutionalism. It's all Chief Justice Marshall in this case, which I find really fun. So David, let's assume that there's some chance that there's an argument within the Trump administration that in fact, each branch has its own constitutional duty

to determine the constitutionality of a provision and that the Supreme Court is very entitled to their opinion, but that the president cannot fulfill his constitutional duties to faithfully execute the laws, as he said in his oath of office, and then in his opinion, execute an unconstitutional law.

So he decides to ignore the Supreme Court because he believes it's unconstitutional and it would violate his oath of office to do so. If the Supreme Court believes that that is the likely outcome ahead of time, are they better off not having a branch-to-branch confrontation and having their opinion ignored, which would set a precedent for future administrations to ignore opinions they don't like? Or are they better off

following Hamilton's guidance in Federalist papers? It is emphatically the province of the judiciary to say what the law is, at the end of the quote and I'll add, not what the law should be or what the president wants it to be. So that, you raise a really good question, Sarah. And I think that one of the ways to answer the questions is to literally just sort of think through the mechanics of what you're talking about. So what we have now is a very, very, very different government than we had in the Andrew Jackson era.

And by that, I mean we have, when the president issues an order, he is issuing an order not just to his presidential appointees, but to legions of people who are civil service employees who have been there before the president, who will likely be there after the president, who are also individually liable for violations of the Constitution. So they have their own individual liability here. And so I think it's a very fair question to ask, but I also think that in this environment, you would have a situation in which a direction would have... Let's just say, let's just spin out this

scenario bear with me it's not going to be perfect but the scenario is Trump says we have to deport everyone who has a pending asylum claim is going to meet you're going to be immediately ordered out of the country now they can come back in for their hearing but they're out while they have a pending asylum acclaim. And there's a lawsuit. It's blocked because maybe the courts find that while your asylum claim is pending, you are not an unlawful immigrant. You're actually legally here under the current law. And Trump says, no, border patrol, ICE, Homeland Security, FBI, you name it, the whole apparatus activate. And you have a Supreme Court opinion saying this violates the Constitution and the law.

I find it difficult to believe that the civil service would move in a way that as soon as Trump is out of office, the avalanche of litigation that would then fall upon the individuals who are involved in this, put aside whether there's impeachment and accountability, there would be legal accountability applied beyond the president here. And I think that that reality would have an extremely strong effect on the other ranks

in the system. It is not the case that these guys the other ranks in the system. It is not the case that these guys, any more than the military, in the military, if you said, okay, here's what we're going to do. We're now going to nuke Gaza. Just you know, we're sick of all of this. We're just going to nuke Gaza. Well, you're going to have, there are legal obligations that still exist and apply to the subordinate members

of the military. There is not a, I was just following orders defense. And so I do think that there would be structural legal safeguards that would prevent something like that. But I also can imagine some scenarios where you're not involving large numbers of civil servants and things like that, where perhaps he could more clearly defy. And in that case, the actual remedy is going to have to rest with the political branches, you know, impeachment and conviction, which we all know works beautifully. All right. Well, I think that was a fun conversation, David. I think we can keep it to under an hour for this post-election episode, because we will have so many interesting things

to talk about as we hear more about who will get appointed to different positions, what policies they are looking at. And of course, we do have Supreme Court oral arguments that we'll have to get back to and circuit court cases. So you know what, keep coming back to the flagship podcast, because this is kind of gonna be where it's at for the next few years, David.

I have a feeling. It is, it's gonna be. Just, I mean, my gosh, the one thing that we're going to experience between, I feel very confident in predicting this, avalanches of litigation. That's true. Tsunamis of litigation, avalanches of litigation,

because if the current trends hold, control of the House, I think, is still a little bit up in the air, but looking like it's gonna be Republican. Look, the main way Democrats will have to resist various Trump initiatives is either gonna be the filibuster or it's gonna be litigation.

And so litigation is going to become only more prominent in the next four years. Yeah, I mean, it's, as has been pointed out by plenty of others, one of the two things that Democrats have been pushing for was an end to forum shopping and packing the Supreme Court, adding seats to the Supreme Court. Would they like to get rid of forum shopping now

and add seats to the Supreme Court? I bet they'd like to get rid of forum shopping now and add seats to the Supreme Court? I bet they'd like to get rid of forum shopping. Really? Because they're going to do a lot of forum shopping. Well, they're going to do it. But also, I think the, you know, for example, the Amarillo, there's a certain, there's a extreme, extreme anger over the Amarillo forum shopping. But yes, yes, I agree with you. But I think they filed their cases in the Northern District of California.

And so what the end of forum shopping, I think, in theory would mean is Congress passing a statute that if you're suing an agency, it must be brought in DC. It's basically gonna move a whole bunch of stuff to DC for administrative law cases, setting standards on when you can use universal or nationwide injunctions in administrative law cases, setting standards on when you can use universal or nationwide injunctions in administrative law cases, basically clarifying that APA language. So I don't know, we'll see where if Democrats are willing to move on something like that.

I mean, moving it to DC is still, you know, the DC courts are still slightly more Democratic nominees than Republican nominees. I actually do think it would probably be good institutionally to have less administrative law forum shopping. I totally agree. And of course, again institutionally, I think it would be good to have fewer nationwide injunctions. All of those things and more coming up in future flagship podcast advisory opinions.

In the meantime, the Northern District of California is bulking up.