Advisory Opinions - The New Supreme Court Ethics Code Is...Okay?

Episode Date: November 16, 2023

Sarah and David respond to comments on Bari Weiss’ Federalist Society speech. The two then turn to the latest Supreme Court news, including: -A new ethics code -Condescension of the unelected -Trump Too Small oral argument -David’s thoughts on CLS v. Martinez Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgard. That's David French. We're back. David, let's just start at the beginning. What did you think of the Barry Weiss speech? I thought it was a really good speech. It was interesting to me to read through some of the comments on the episode. I know that some people were surprised that it wasn't a back and forth between you and I. We're going to do it now.

We're going to do it now. We're going to have that discussion right now. No, I thought it was a really good speech. And she was pointing to something that, look, we just have to wrestle with. And that is, there is a shocking amount of tolerance for bigotry and intolerance directed. And this is especially on campus, especially on campus, but we've seen it elsewhere. There is a shocking amount of tolerance for an extraordinary amount of hatred

and intolerance towards Jews. I mean, that we have seen erupt since October 7th. And even in some way, I'm not going to say even worse, I'm going to say compounding that is the reality that we have seen an enormous amount of intolerance from some of these same institutions for anything that they perceive as even arguably offensive directed towards other groups, right? So, you know, if you have a memory longer than a goldfish, for example, you remember people surrounding Nick Christakis at Yale and just hectoring him for the insensitivity

of his wife basically saying adults should be able to pick Halloween costumes. And when you say it out loud, it sounds like this can't have actually happened in the real world, right? But it actually did happen in the real world and it was one of the most ridiculous things I've ever seen in my entire life. And then you have people saying glory to the martyrs, which is protected speech, okay?

Glory to the martyrs, protected speech. But the banging on the doors of the Cooper Union, the physical attacks at Harvard, I mean, we can just go on and on into stuff that is veering into unlawful harassment. And the way in which so many people have kind of swallowed their tongues on this

and the tepid way in which there's often been these condemnations or the absolute lack of any evidence that there's any sort of discipline being imposed. I mean, it's just such a glaring double standard that it's almost a joke if people didn't fear for their safety. And so calling that out to me and just saying it plainly and clearly,

and look, I know there are some commenters who say, well, she could have gone on a rampage about stuff from the right. Yes, sure, yes. But she's also speaking right after 10-7 in the middle of this incredible wave of anti-Semitic protests. This is not, if she was speaking after January 7th or right after January 6th. I'm sure

there are commenters who would say, what about the riots in the summer of 2020? Right. If you're going to condemn the right and January 6th, you also in the same speech need to condemn the riot summer of 2020 or I'm not listening to you. This is a form of partisanship, Sarah, that is exhausting because it says you can't say true things about a topic unless you say all things about all related topics. No, no, that's just not the way this works. She was making a critique of a particular strain of thought in the West and in the United States. And it's okay to make a critique of a particular strain of thought in the West and in the United States. And it's OK to make a critique of that strain of thought, particularly when it is having such real world effect now without having to critique every other strain of thought

that is problematic or dangerous in this time. So that's sort of like we're beginning with an uncharacteristic rant, but let's have an uncharacteristic rant. I felt like she nailed it on the head when she was describing why the experiment in critical race theory or in anti-racism has failed. And it's because, you know, it's sort of the legacy of Marxism. If you see everything through a class struggle, you're going to miss some stuff. But this is much, much more short lived, much harder to square with any sort of reality. If everything has to be seen through the oppressed winning and the oppressor losing. And it's without regard to merit, hard work, any individual characteristics whatsoever. You're just morally bankrupt.

And it gets to this point of why people feel the need to tear down the posters of the kidnapped children or smear excrement on a three-year-old's you know who's being held by Hamas's face it's because I think it is in reality that juxtaposition the feeling that their worldview doesn't work if those children are victims, if the oppressor is also a three-year-old kid. You've got to rip it down because the cognitive dissonance is too much. And that's maybe a simplistic way to think about it, but there's some kernel of truth there because otherwise, it's really hard to explain why rational people who think they're the good guys who think they're on the side of social justice can take dog poop

and smear it on a kidnapped child's face what right yeah yeah you know part of this is what I, you know, what I saw on the in the radical left when I first got to law school. And I'm now sort of seen in every strain of radicalism left and right. But what I really what really confronted me head on when I experienced that radical view in law school, which is the same view we see now. I mean, this is, it's the same stuff. But when I experienced in law school was the utter disregard for the individual, the individual, the dignity of the individual or the liberty of the individual or the safety of the individual who is seen as belonging to the oppressive system. So if you're seen as a, as a person, as a cog in an oppressive system. So if you're seen as a person, as a cog in an oppressive machine, that's all you are, is a cog in an oppressive machine.

You've lost your individuality. You've lost your individual dignity. You've lost your individual identity in any sort of way. And so what you see, you've seen this in the response to Israel on 10-7. They don't see the individual identity of the children who are captured, the women who are raped. They don't see them as individuals. They see them only in the context of them belonging to the powerful group or the oppressor group. the context of them belonging to the powerful group or the oppressor group.

And, you know, look, we have seen this kind of thinking mark authoritarian and totalitarian and genocidal regimes for a long time that you don't have an individual worth or dignity or identity anymore. It is just your group identity that is all that matters. And look, that is about as counter to the ideals of the American constitutional system as you can imagine. And to self-government and Western liberal democracy as a value that humans individually have value.

And it's actually pretty, i want to say this carefully hamas isis al-qaeda many of these terrorist organizations very much have a group uh a group belonging ideology where your individual life doesn't matter both the member of the terrorist organization your individual life doesn't matter. Both the member of the terrorist organization, your individual life doesn't matter because your life is expendable. The civilians around you are expendable all toward this other goal. And certainly the people,

the civilians that they're killing don't have individual value. Like that's where this ends up. And that's why I thought the speech was worth replaying on the show. Because I think her anti-Semitism as a warning message is really, really prescient. And look, there was one comment that stuck with me, maybe because I had a little bit thought of it myself and hadn't fully grappled with it. But the comment was her sort of apocalyptic, the world will be over if we don't take down these people is a lot like Trump. And it's a lot like everything you guys say is bad in our society in terms of, you know, communicating with one another. So why did you replay that here? I think there's some truth to that, honestly. I take that criticism. What do you think, David? Like the world isn't ending. The country isn't

over. Yes. Okay. Yes. And not yes, but because I don't like yes, but because if you say but nobody cares that you said yes. So yes, and I believe that this is where sort of the critique writ large of, okay, what about the right? What about the left? is not simply coming, this idea coming from the left, the oppressor-oppressed kind of rubric that is a real threat to the American experiment. It's also the response to that, like woke, anti-woke authoritarianism. Essentially what we are dealing with in the United States is a moment where millions of Americans are tempted towards,

and some percentage of those millions of Americans are engaging in extraordinary levels of hatred, in some cases outright violence and intimidation, against a side that they perceive to be an existential threat. threat and in attacking the existential threat have believed that all of the normal constraints that we place on ideological contests in the United States or all the normal rules of civility and decency and all the ways in which we humanize people that we disagree with don't apply anymore because there is such an extraordinary threat. And I've written that one of the threats to this country is that sense of threat, that the actual, the sense, this feeling of emergency, to use the Flight 93 analogy, if you think the plane is going down when it's not, and you choke the pilot to death and you get in the cockpit and you realize, oh, it was just turbulence. You've done something horrible

even though you thought you were combating an emergency. And I think that's been a lot of what's happened in our country is we have, in the interest of combating this extraordinary, this extraordinary sense of threat or dealing with a side that we believe offers this extraordinary sense of threat, we have embraced people or engaged in conduct that is itself incredibly destructive. I think that is a extremely valid sort of overlay for evaluating the whole woke versus

anti-woke world. Because in some ways they become two sides of the same coin, horseshoe theory and all of that. Now, here's the other, here's the and. That was the yes, I agree with that critique. And here's the and. And there are some times when there are forces that are genuinely evil and horrible and violent. And one of the problems with the sort of woke versus anti-woke construct is we've become so used to emergency language about everybody that we can be desensitized to actual emergencies.

And what we saw in 10-7, the Hamas attack, actual emergency. What we saw in the Russia, Russian invasion of Ukraine, these things are at so many levels beyond the kind of ideological combat that gets people inflamed on Fox, you know, or the libs of TikTok, blue-haired fourth grade teacher, whatever, that makes people lose their ever-loving minds for days on end online.

These are different things, okay? These are different categories of things. And I think that it is entirely appropriate to treat mass slaughter, aggressive invasion, forced relocation of, you know, all of these kinds of things. Civilians as human shields. I mean, this is an order of magnitude, order of magnitude degree of severity so far beyond the normal stuff that gets us all frothing at the mouth ideologically that we've got to have, we still have to be able to use extraordinary language for extraordinary events. And I think that's what we're talking about here after 10-7. And one of our problems, and after February 2022, for that matter, but one of our problems is we have been using that same language in this country over Halloween costumes on one hand or blue haired fourth grade teachers

on the other hand. And that's that's our issue. Much more than after 10-7 saying that this sympathy for Hamas is a catastrophe or after February 2022, a lot of this pro-Russian sentiment that we've seen from the right is baffling and deeply problematic. I think that's our issue more, Sarah. All right, I think that's a good place to end our discussion. I want to move on to the Supreme Court's release of an ethics code. Well, perhaps we should sum it up

with the New York Times opinion headline, we waited 200 years for this Supreme Court ethics code. It was by Jesse Wegman, and it starts with, On first impulse, I was tempted to say something nice about the Supreme Court's first ever ethics code, which the justices released on Monday after years of pleas from the American public and lawmakers of both parties. But the most striking thing about the code was its resentful tone. Call it the condescension of the unelected. Okay, feels a little harsh, David.

Let me read you what the statement actually said. The undersigned justices, and this includes both the nine, by the way, current Supreme Court justices, as well as the two retired justices. So 11 justices signed on to this. The undersigned justices are promulgating this code of conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the members of the court. For the most part, these rules and principles are not new. The court has long had the equivalent of a common law ethics rule that is a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members

of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct and Historic Practice. The absence of a code, however, has led in recent years to the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this code, which largely represents a codification of principles that we have long regarded as governing our conduct. So that was sort of a fancy way of saying nothing has changed, but rather than continue to do interviews or sort of mention these things in like, you know, settings and speeches,

um, we're going to lay out 14 pages of what we think we are bound by notably missing. And I'm not the first one to point this out. There's no enforcement mechanism. Um, I think there's an interesting question of whether there could be, we've talked about that a little justice Alito,

of course, certainly raised the idea that there's not really an enforcement mechanism. There could not be an enforcement mechanism regardless. And they included the new part in here, which, again, I really appreciate. We've mentioned this before, but it's almost the opposite of what I think people wanted from the Supreme Court, is they included the duty to sit, the ethical duty to sit. Meaning, whereas in lower courts,

the impropriety or appearance of impropriety always is going to lean towards recusal. But not at the Supreme Court. Because you could end up not being able to decide cases if everyone just sort of recused any time there was any sort of suggestion that there could be an appearance of impropriety. So there is a duty to sit. Now, there's a duty to sit at the lower courts too,

but the duty to sit is all the more underlined at the Supreme Court. And not only is it the duty to sit because you could end up with, you know, not enough justices potentially or an even number of justices, but also because people use pressure to recuse, they create the appearance of impropriety so that they can try to get someone to recuse

so that they can alter the outcome of a case as perceived in their own minds. Well, that's where the duty to sit pushes against that too. So, okay, David, you've got 14 pages. Yeah. The critics are right. There's no enforcement mechanism and it doesn't say anything new. On the other hand, the critics have never fully acknowledged like, what is it exactly that you think is going to happen here? Like, what is this ethical code that you're going to promulgate that looks so much different than the lower courts? Because part of your complaint initially

was that they're not bound by the lower court's ethical rules. Okay, now they've said they are. What do you want? No, I think it's a valid criticism that there's no enforcement mechanism. And an enforcement mechanism doesn't have to be... So, for example, let's take some of the Clarence Thomas controversies. He gets a loan for his RV. Loan is canceled. Not reported as income, benefit, etc. That's a problem. That's a problem.

What do you do about it? What do you do about it? OK, what what do you do about it? Does that mean that Clarence Thomas should be suspended from the bench and therefore other litigants who are not impacted by this at all face the prospect of an eight justice court so that you're might you might not be able to resolve cases for unrelated matters because the justice has taken a gift improperly. That doesn't seem right. But at the same time, this idea that, well, Clarence, you made an oopsie again, and there's nothing, there's sort of no consequence there. And, you know, look, a constitutional scholar will say, yeah, there is, there's nothing there's sort of no consequence there. And, you know, look at constitutional, you know, a constitutional scholar will say, yeah, there is there's impeachment. Right. There is impeachment. Same same consequence hovering over a Supreme Court justice as hovers over a president of the United States. So there's impeachment. What are you talking about, David? And violating an ethics code could be a basis for an article of impeachment. I do think that that, Sarah, actually has some real validity to it in the sense that if you have a written code, even if it doesn't prescribe an enforcement mechanism, that it certainly violation of that written code certainly could form a concrete basis

for an article of impeachment. I do think that that is something that people don't pay enough attention to. And I don't think there's a justice who wants to be impeached, even if because of partisanship, conviction is very, very difficult. So I do think it is not quite right to say it's entirely toothless because you now have something that you can measure a judge justice's content compared to or compare a justice's content conduct to this standard. And look, the impeachment remedy can come into play. But I do think that there are ways in which it could have been better even leaving aside the impeachment option. which it could have been better even leaving aside the impeachment option. So, for example, if you have a judge should avoid imperatism and the propriety.

And there are sort of examples of what this could mean. But it could get a lot more concrete. Therefore, a judge must not accept a gift over X dollars. A judge must not blah, blah, blah. And, you know, adding that mandatory language, even if the penalty is, say, paying a fine or refunding the gift, returning the gift or something along those lines that that obviously they'd have to recuse if the gift or the benefit came from somebody who had an interest in litigation. But we're talking about a lot of the scandals, you know, and the controversies around Clarence Thomas have involved finances or money or gifts with people who don't necessarily have something right in front of him. Maybe they

just really like hanging with a Supreme Court justice, or maybe they're genuinely close friends or whatever. I do think that having some mandatory language with some consequence, even if it's simply a fine, Sarah, or a requirement of a return of the value of a gift is better than kind of just generalized should language. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's

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I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. We have a Supreme Court oral argument that we've sort of put on the brakes because we have a bunch of other things to discuss. This is the Trump too small case.

So dude wants to trademark Trump too small. And the trademark office says, no, our hands are tied. You cannot trademark something that uses the name of someone else without their consent. So he sues on First Amendment grounds, arguing that this is, you know, a violation. reminiscent of some of these other cases that we've talked about. For instance, the slants, the band, right? That was a case from not that long ago about disparagement. And the Supreme Court held that, in fact, that did violate the First Amendment. That was a form of viewpoint discrimination. Here, it's a little different because it doesn't matter whether you're saying nice things or mean things, although presumably if you were saying nice things, maybe the person would give you their consent, but not necessarily. I mean, how would you even go about finding Jennifer Aniston to get her consent type thing? Jennifer Aniston is a hottie. You may find that flattering, but maybe she doesn't. Maybe she wants

to be seen as more than a woman with incredible skin at her age. So the justices sort of ping pong this back and forth. But the reason, David, that I wanted to specifically wait to talk to you when we had some time. I know. Is that a case that came up a few times was the Christian Legal Society case, which was not on my bingo card. No. For this oral argument. So I want to read you a little bit of why it came up.

So Justice Kagan, I think that the two are related, limited public forum and government assistance, and much the way that Justice Sotomayor wrote in her dissenting opinion in Brunetti. But if we were to go down the limited public forum road exclusively, why wouldn't we just say the regulation program is the forum? It's not the register. It's not the book that's the forum. But the registration program is the forum. Much like in Christian Legal Society, the student activities program was the forum, a metaphorical forum, if you will. But that's what we said in CLS. And David, you have so many feelings about Christian legal society. Oh, gosh.

Why it came out the way it did. And here it is rearing its head. And that's not the only mention. I like she, she. No, it got mentioned several times. But, and to explain what she's talking about, right? There's a question of whether the justices should think about this in a limited public forum setting, which is just sort of viewpoint discrimination, your First Amendment rights in many ways are maximized in

a limited public forum analysis, or is this government assistance, meaning the government is actually providing monetary assistance, frankly, to one side or the other. More similar, perhaps, to the playground, religious school cases, things like that. So, I mean, the justices aren't even quite sure which bucket, if you will, of cases they should be thinking about this in. quite sure which bucket, if you will, of cases they should be thinking about this in. And so anyway, that's why it made the Christian Legal Society reference all the more amazing because that's when I think limited public forums, I don't immediately go to CLS. No, and I don't immediately go to CLS either. And just to remind listeners about CLS v. Martinez. And again, this is one of those cases that, you know, I hate that Jonah took the Uruk-hai theme for his podcast, where every time Woodrow Wilson is mentioned, you hear the Uruk-hai theme from, you know, Saruman's army.

There are a few cases I want the Uruk-hai theme for. One is Employment Division v. Smith. Another one, CLSV Martinez. But this is a case that was born out of a controversy that really was one of the dominant legal issues early this century. And that was, can universities require all student organizations to agree to non-discrimination policies as a condition of recognition, even if that non-discrimination policy means, for example, that your religious group can't impose a statement of faith, that a male choir can't be a male choir anymore. I mean, how many restrictions that are related to

the very purpose of an organization can a university put on student organizations as a condition for being recognized student organizations on campus. And that that was a huge argument because what universities were doing was they were saying that Christian student groups and others, but it was mainly Christian, that have a statement of faith, particularly for their leaders, cannot be recognized. And major issue went up to the Supreme Court and with a case out of the UC Hastings School of Law with a twist. The case was going to be very difficult to win if they said that, okay, a student organization, a Christian student organization cannot have faith-based requirements for its leadership, but say a political organization can have politically-based requirements for leadership. They were going to lose that case.

So what they essentially did is they said, here's how we interpret our non-discrimination policy as an all comers policy means everybody can join and be eligible to lead every organization. Now, this is completely not feasible for an undergrad, a major undergrad, because you can't say everybody can join a fraternity and sorority, or everybody can play in women's softball intramurals. I mean, you just can't do that. But in a law school with a much more confined and sort of limited student experience, they felt like they could get away with it. And then CLS stipulated in the litigation that this non-discrimination policy wasn't viewpoint discriminatory, wasn't discriminating on the basis of beliefs. And so then the question essentially became much more like, can anyone form a group with exclusionary rules and have a right to participate in a recognized student organization

context? Now, I think there are freedom of association issues there that should have led CLS to win anyway. I think there are a lot of arguments where CLS should have won anyway, but it didn't. But the case, Sarah, has never been much of anything. It turned out to be a big nothing burger because it was so confined to that all comers context that is unworkable. I mean, unworkable at a university that it just meant nothing. It's barely been cited anywhere. It's been sort of a nothing of a case until I would call it it was zombie precedent that like lurched from the grave in this oral argument. And what was really interesting, Sarah, the context was,

obviously Elena Kagan views CLS v. Martinez not at all as a freedom of association case, but as a government benefits case. That what CLS was wanting to do, and this is why she brought it up, was participate in a government benefit that it was not otherwise entitled to. So this was a government benefit case.

And then therefore the limitations on the government benefit were seen, were evaluated under this sort of rule of reasonableness standard. So she saw this as a government benefit case. That's why she brought it up. And which shows why the case was lost in the first place. Yeah. So there's a few reasons why I wanted to talk about this case, this oral

argument, not only because it highlighted the resurrection of zombie precedent CLS. But it's this interesting First Amendment case for me, because on the one hand, I found myself very much agreeing with Justices Sotomayor and Jackson, who were like, wait, how is this infringing on your speech? You can still have t-shirts that say Trump too small. Nobody's stopping you from printing the t-shirts, what you say on the t-shirts, you're not getting arrested by the government or fined or anything else you just can't get the benefit the protection from the government to have that trademark um from the patent and trademark office like that's not a first amendment problem exactly to sort of have that additional protection against your competitors, frankly,

that's something different than just a First Amendment analysis. But here comes Justices Gorsuch and Kavanaugh, to at least some extent, saying, you know what, we don't really need to think about limited public forum. We don't need to think about government assistance cases. What we really need to think about here is some history and tradition. And David, I've been wondering aloud now for two years, text history and tradition is colonizing itself within Supreme Court jurisprudence. And at some point, it's not making a lot of sense that, you know, we're using tiers of scrutiny for some things and text history and tradition for other things. And I think the answer is sort of written on the wall. in its current iteration, if you will, the text history and tradition is going to very quickly, like a happy fungus or however, and by the way, for those who think that's pejorative,

I love fungus. I read books on fungus. Mycology is a hobby of sorts. I grow mushrooms. So that was not, this is a neutral term for anything. But like a happy fungus, it's going to very quickly colonize and take over anywhere that tears of scrutiny were. And here's your example of, you know, Gorsuch and Kavanaugh saying like, we don't need to think too hard about which bucket this falls into because to, to quote him, you know, there's a long historical tradition of, you know, these sort of content based restrictions. And sorry, another quote, just look at the history and we can see whether historical evidence comports with this being a First Amendment liberty. Justice Kavanaugh may be a little more interested in just the fact that, you know, Congress did this. We're deferring to Congress when it's not an obvious First Amendment problem. It's been on the books a really, really long time. You match that with Justice Gorsuch's point that it's not just that it's been on the books from Congress for a long time. It's just historically always been a thing that you could limit these sort of government granted protections in a variety of ways.

protections in a variety of ways. So David, at the end of the day, what you end up with is several precedents that struck down parts of the Lanham Act. I mentioned the Slants case, for instance. And here we've reached the cul-de-sac. The court in no way seems like it is going to strike down this part of the Lanham Act. It will say that you absolutely, the government can prevent you from getting a trademark when you're using some other living person's name. But will there be a majority of the court on why? on why? Maybe not. Yeah. No, I don't. It was interesting. I think the government wins. Trump too small loses. And I don't know that we'll have necessary, you know, are we going to have a clear majority on why that is? I don't know. I did not sense that a clear majority was emerging on the why that the government loses. There was a clear majority that the government, I mean, why the government wins. There was a clear majority here that the government does win. Trump too small loses. get at some of the problems and conundrums when you're talking about history and tradition.

Because you can't say that history, if you're an originalist, under no way could you say, for example, history and tradition doesn't matter. So, for example, what does the freedom of speech mean? What does that phrase, the freedom of speech, mean? Obviously, you're going to be looking to history and tradition to inform the meaning of that phrase. At the same time, however, as we've belabored and talked about many times, one of the realities of the American experiment has been the gap between the language of the American experiment and the reality of the American experiment. And a lot of the change, positive change over the last 200 years has been the narrowing of the gap between the language of the American experiment and the reality in favor of the language. So that, you know, if you're talking about what does the freedom of speech mean, and we're going to look at it entirely, entirely through history and tradition, that's not going to be good for the freedom of speech. Okay. And this is what a lot of folks in the new right

that will stand up or sometimes literally yell at me. What about anti-blasphemy laws? Because we had the long history and tradition of anti-blasphemy laws at the state level, right? And so there are some real limitations and problems here with history and tradition that we don't need to belabor, belabor. But at the same time, it does have a place in the analysis. It's just not the analysis, in my view. But I think the government benefit framework that Justice Kagan was talking about is the right framework to view this case

in particular. I just object to including CLSV Martinez in the government benefit framework. That's my objection. The framework that this is a, what we're talking about here is a government benefit that is not being restricted on the basis of viewpoint. I think that's the right rubric to view this. All right. Last thing, there was a nice moment at the basis of viewpoint, I think that's the right rubric to view this. All right, last thing. There was a nice moment at the end of this argument. And let us just join with the Chief Justice in congratulating Malcolm Stewart, Deputy Solicitor General, on his 100th argument at the court.

But it's worth reading what the Chief Justice said from the bench because it was kind of delightful. Thank you, Mr. Stewart. If you'll linger at the podium just for a moment. Our records reflect that this is your, or was, your hundredth argument before the court. You are the fourth person to reach this rare milestone this century. Throughout your career, you have consistently advocated positions on behalf of the United States in an exemplary manner. I recall one case in particular from my days in private practice 23 years ago, in which I was counsel for petitioner and you argued in support of respondent. Now, when the opinion came down, I was just nine votes short of a unanimous result.

On behalf of the court, I extend to you our appreciation for your advocacy before the court and dedicated service as an officer of this court. We look forward to hearing from you many more times. I note that not only because it's delightful and because it is a cool accomplishment. Malcolm Stewart, it's like living history when you walk through the halls of the Department of Justice when you run into Malcolm Stewart. It's very cool. For those who are curious how the Solicitor General's office is set up, obviously there's the Solicitor General that is a Senate-confirmed position. There are then two deputies, as there are many of the offices, including even the Office of Public Affairs. One deputy is a political appointee, and one deputy is a career appointee. Now in the Solicitor General's office, there is in fact a third deputy.

But Malcolm Stewart is that career deputy position and has been forever, more or less. So 100 arguments is a lot. I'm curious whether the Supreme Court, you know how like news organizations, David, always have obits ready for all sorts of people who may or may not die anytime soon? Like where in the back room is there the spreadsheet of how many arguments each person has and it's like oops so-and-so's getting close could be tomorrow no won't be this time um because that

would be a fun a fun job the person who's keeping up that list in the chief's chambers. But it gets to this larger point, David, on the importance of advocacy in our system and not just oral advocacy at the Supreme Court, but just worth underlining and appreciating that our entire system, since its inception, requires zealous advocacy, even on the unpopular side, even on the losing side, you lose 9-0. At least we know that you had John Roberts in that case arguing on your behalf. And that's how at least we hope that we got to the right conclusion

is that we have good, smart people trying their best to win. And then we have good, smart people taking in those arguments and trying to make their best judgment as well. And having Malcolm Stewart argue, do that job a hundred times just in the Supreme Court is cool. And it's nice. And it's why you don't dog on people for losing 9-0. It's why you don't dog on people for taking unpopular cases, clients, questions. I mean, it's the John Adams point, right? John Adams, by the way, you forget like really,

actually won most of those cases representing the British soldiers. It was zealous advocacy that worked. So yeah, a nice little reminder to everyone. Now, I still take Justice Scalia's point that perhaps we don't need our smartest people being those zealous advocates. And perhaps right now we've tipped our thumb

on the scale of having too many of our smartest people go into law instead of say space, engineering, just all medical science, so many other things that we need our smart brains going to. I know many of you listen to this podcast, so just know we're glad that you're out there doing that. Please don't come to law. We don't need you. We don't need the smartest. We just need mostly smart, pretty smart. Mediocre, frankly, would probably do the trick in a lot of worlds.

poker, frankly, would probably do the trick in a lot of worlds. You know, I'm glad you said what you said about the importance of legal advocates, because I mean, it's just absolutely indispensable as a truth-seeking mechanism to have smart people on 100% on the side of their respective clients. But... They haven't found a better way to get to truth. Haven't found a better way. But there's a giant but for that, Sarah, that I think people haven't really absorbed. And the but is that only works in the court system. Okay, because in the court system, you have rules of evidence,

you have rules of decorum, you have all of that energy and advocacy is channeled through a code of ethics into a formalized system where your advocacy is tested in front of an impartial judge, an impartial jury, where you have a capable opponent, where you have rules of evidence. Here's what's really hurting our society is we have people who adopt a lawyer mentality in life, in activism writ large, where there aren't

rules of evidence, where there aren't codes of ethics, where there. And so what's happening is we're having this activism driven world where people are approaching the their their political cause or their political candidate with all the zeal that a lawyer has for their client and none of the rules and none of the limitations. And it's creating this activist-driven culture where as opposed to in courts where the two advocates going at each other, it's a truth-seeking function because it's channeled through all the rules with an impartial jurist. And outside of the courtroom,

that same zealous advocacy mindset becomes a truth obscuring function. And is one of the reasons why we have such a problem with just knowing basic, simple facts in this country right now, is that we have two sides that are treating their life as partisans as if they're lawyers unbounded by rules of ethics. And that is really destroying our society's truth-seeking ability because it's a bastardized form of the truth-seeking function we pour into our court system. And this activist mindset and this sort of activist ethos is really sort of eating our institutions alive. And so, yeah, it's honorable to be a lawyer

as a lawyer in a court system. If you're going to take the lawyer mindset just as a citizen, talking about your sort of favorite ideas or your political party or your candidate, et cetera, you're missing it. You're missing it. We need a lot more jurists, people who are trying to discover the truth, than we need more activists. And we're overrun with activists right now. All right, David, next episode, we're gonna dive back into some Trump legal stuff,

the civil fraud case, the 14th Amendment cases that have been making their way through the court system. But before we wrap, you had one last question. Yeah, I wanted to go back to the speech at the start because one of the criticisms, and I dealt with it was and I talked about it was way, you know, she gave this whole speech about sort of this authoritarian woke ism, for lack of a better term, when that's not the only authoritarian threat right now in America. And in many ways, it may not even be the most salient authoritarian threat

in America right now. So the speech was just, if it's talking about authoritarianism, just kind of fell flat because it'd be like talking about fascism in the 30s and only mentioning Mussolini. So, but, and, you know, one of the that i was saying in response is well not every speech or essay can be about everything um which is true but even i'm a little unsatisfied with my own explanation so let me ask you this question sarah when you're thinking and writing and talking about say authoritarianism or a threat that has some, where there are some analogs on both sides. How do you approach that? How, under what circumstances do you mainly or exclusively talk about one side while leaving the other one out? How do you, how do you approach that problem?

I think it's particularly hard because as you start to mention other examples, particularly hard because as you start to mention other examples, you're equating the two. And sometimes the two are similar in principle, but not similar in effect or in importance or etc. And so then not only do you have to mention it, but now you've got to go to an explanation of how you're not equating the two, they're not similar and important. So unless that's the point of what you're trying to say, you're wasting a lot of room and a lot of people's attention to get to what you're trying to say. It's a lot of throat clearing oftentimes. However, let me say that in this case, the reason that I thought it might be more important and more necessary is because of who the audience was. So to be clear, I have no problem for a whole speech

only talking about Mussolini's fascism. In fact, clear, I have no problem for a whole speech only talking about Mussolini's fascism. In fact, maybe there should have been more of them. I think that perhaps we, at least historically, spend a lot of time talking about Hitler and not a lot of time talking about how Italy and Japan also fell under a different but similar spell such that they allied themselves with Nazi Germany. And again, it fascinates me because it's worth, I think, people remembering as we sort of caricature World War II as we move further away from it. These people did not believe they were the bad guys. They thought that they were on the side of social justice of their day. They were trying to perfect their own society and their countries and

everything else. If you caricature them as the baddies, you, I think, really risk history repeating itself because not a whole lot of people are going to walk around going, we're the bad guys. Hamas doesn't think they're the bad guys. These, um, you know, anti-Semitic protesters don't think they're the bad guys. The people tearing down the posters of these children, smearing dog poop on them, they believe they're the good guys. So sorry, little side rant there that like, yeah, I would be all for a speech that only talks about Mussolini and doesn't mention Hitler. It's okay to do that. But. I'm not going to use your and.

But. But, yes. In front of the Federalist Society audience, that's an important audience of people. And it's not an audience that you get to speak in front of very often. That many people who are the leaders of their fields in the conservative legal movement and noting that that principle while maybe not an existential threat the way that anti-semitism is to a civilization but nevertheless that principle can extend to problems on the right i mean first of all there's anti-semitism on the right. I mean, first of all, there's anti-Semitism on the right.

I wouldn't have minded a paragraph or two along those lines, David, not because I think you need to do it anytime you talk about one bad thing, but because sometimes your audience, it is a good moment to remind your audience that when they share your principles, especially when they share your, sorry, when they share your current speech outlook, to make sure they understand how that principle can apply to things that maybe make them less comfortable. Yeah, no, I think that's fair. I think that's fair. And you know, it's interesting. I was just thinking about reflecting back on the start of the conversation, because what did I do when I started talking about what was going on? I also went and talked about Russia and Ukraine and some of the right wing responses to Russia and Ukraine, which, but the way I kind of approach it is when I'm talking about a problem, if when I'm talking about a problem, I can immediately think of extremely salient and important examples that are not exclusive to that audience that I'm speaking about, but also apply to other, I mean, not exclusive to that group I'm speaking about, but also apply to other groups, I generally tend to go ahead and mention those other groups as well. generally tend to go ahead and mention those other groups as well. It's one of the reasons why when I talk about DeSantis in Florida, I also almost always bring up his doppelganger, Gavin Newsom

in California, because they both have such incredibly similar approaches to culture war. And then both also claim the freedom mantle while they violate the First Amendment rights of dissenters in their state. So I tend to think of it as if I can immediately grasp and think of an analog that applies not just to the group I'm speaking about, but to other groups, including groups that the audience might feel more sympathy towards, that's when I tend to raise it and to mention it. But at the same time, it's got to be a real analog. Otherwise, what you're doing is you're playing into, you're essentially playing into the interests of the people who want to create false equivalencies. So, for example, if, just for example, let's say

somebody was saying, you know, Donald Trump has a corruption problem. Donald Trump is corrupt. Donald Trump is corrupt. And somebody says, what about Hunter Biden? Well, I can say president and president's son are different categories of people. If you had Joe Biden in that same category of misconduct, let's have that conversation. But I don't have to mention Hunter Biden every time I mention Donald Trump, because that is creating and fostering that sort of false equivalency that you were talking about. that sort of false equivalency that you were talking about. So I agree with you completely that if the inclusion of another entity or another idea creates false equivalency, you shouldn't do it. But if there is an actual equivalency and it's not mentioned, that can sometimes feel

incomplete, shall we say. And for those who aren't going to listen to our next episode before Thanksgiving, good for you, first of all. Go spend time with family. There's going to be a lot of podcasts, I think, talking about how to talk to your family about politics this Thanksgiving. I find that to be a really tedious sort of Thanksgiving trope because I hope that most people's Thanksgivings, you don't need someone not in your family

talking about how to talk to your own family. But, ha ha, another but. But I do think it's helpful when someone's telling you something that bothers them not to say, what about this other thing that bothers me? Yes. It is something that really annoys me when people do it to me. So I just, you know, Thanksgiving or not, family or not, just in general, for conversationalist purposes, you don't have to say, what about this thing that bothers me?

You can just listen to that person and agree or disagree on the point that they're trying to make. It's so true. So true. And by the way, Sarah, isn't that another sign of how we take politics and we seem to place it in a category that is titled under the heading, not normal human relations. that is titled under the heading, Not Normal Human Relations.

So in normal human relations, if someone says to you, you know, I tore my Achilles running and now I have 12 months of rehab and it's like really painful right now after surgery. You don't say, well, what about my trichne? Right? You say, I'm sorry that happened. Do you need any help? You know, that's, you don't immediately what about, you know, I'm having a real hard time with my boss. Okay, well, can a sudden, a lot of the rule, the normal rules about how we relate with other human beings just are thrown out the window. with Russell Moore and Curtis Chang called The After Party, talking about how Christians should approach politics. And one of our key themes is stop treating politics as this special thing

for which all the normal rules of honesty, civility, decency, those don't apply in this special little category called politics. No, you pull politics into the humanity with which you approach other topics. You don't exclude politics from the humanity with which you approach other topics. So that's my little pre-Thanksgiving rant, Sarah. I like it. Maybe for the next episode, after we get done with the Trump stuff, we'll do a little culture dive into television, TV, movies, books, etc. If you've got a day or two off next week.

But we'll save that for next time. And I also have a New York Times essay on relationships that has gotten so many views that I read it and found it really thought provoking. And I want you to read it, Sarah. Give me the title. We'll put it in the show notes and we'll talk about it next time. Okay. All right. Why aren't more people marrying? Ask women what dating is like by Anna Louis Sussman. And so, Sarah, I want you to read that. And then I'm going to, and I know you're not dating, but I want, I want, it says, Ask Women What Dating Is

Like. I'm going to ask you what you think as a woman about what she is saying. Oh, I have thoughts. Okay. Okay. I found it really good. Like really interesting. Really good. Love your thoughts. All right. Next episode. Thank you all for joining us and we'll see you again next week. Oh, oh, oh. Oh, oh, oh.