Advisory Opinions - Untested Theories

Episode Date: February 2, 2023

Face to face at last, The One And Only Host Sarah Isgur and Untitled Tennessean David French exchange rants about NY prosecutors' untested legal theory for indicting Trump and about Biden's approach to ending emergency law (we believe the technical term is “¯\_(ツ)_/¯”). Also: -Should “sincerity of belief” factor into religious freedom decisions?-The vexing cake speech debate continues!-A judge flunks on the Constitution-Tingley v. Ferguson: Is therapeutic speech… speech?-One Catholic father is cleared by the DOJ-And…why Justice Kavanaugh concurs Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions, the second episode in which I am your host, Sarah Isger, joined by untitled other dude from Tennessee, David French. Frequent guest. Frequent guest. David, you just started at the New York Times.

Congrats. Yeah, thank you. I'm on day three. I will say that the New York Times slack is larger than the Dispatch Slack. Interesting. Yes. Interesting. But there are commonalities.

Namely, the Dispatch Slack has a dog pictures channel. Yeah. And then so does the Times. But the Dispatch Slack dog pictures channel is actually for babies. That's the joke. I know. It's dog pictures because I think Slack comes with that channel. And then I, who I think I had the first baby at the dispatch immediately co-opted it for

baby pictures, which I thought was hilarious because there is no baby pictures auto Slack channel. Yeah. So, yeah, but it is it is it is funny. And we do put dog pictures in dog pictures channel and baby pictures. So it's a mix. It's anyone you love. Yeah. So I've thought long and hard, like if I'm going to introduce myself in New York Times Slack, which you don't actually do it. It's much more tightly controlled than, you know, all seven, five, six, seven thousand people total free for all. But in the opinion side of it, there is an opinion animals Slack channel. Separate just for the opinion section. Just for opinion. Yes. And well, you know, Sarah, there's a difference between reporting and

opinion. So even for their dogs, perhaps. So my first post was of Higgins and Boo, my two Labradoodles. So that's called putting your best foot forward. That's what that's called. All right. Well, we've got we've got an action packed pod today. We do. We're going to talk about something that President Biden said that really set me off. And then we'll talk about another grand jury in New York looking into Donald Trump conversion therapy dissentals, which I just feel like I don't even need to explain that. Maybe we'll just leave it at that. Conversion therapy dissentals is my new band name. An amicus brief on the sincerity of religious beliefs and a couple outcomes in cases.

DOJ gets a not guilty verdict in one case and Jack Phillips back up losing another case. I mean, that's like deja vu all over again. And finally, if we've got some time, I do want to talk about the speech that Justice Kavanaugh gave last week. Just some highlights, just some fun little tidbits that were interesting. Are you ready? I'm so ready. All right. So the president was doing a little gaggle outside the White House this week.

And the question from one of the reporters was, what's behind your decision to end the COVID emergency? And David, you know, my grand unified theory at this point. I mean, it's our grand unified theory, really. And the grand unified theory, in short, is that the Supreme Court is being pulled into this place it doesn't belong because the other two branches have so abrogated their constitutional responsibilities. I actually gave a whole speech on this at the Roanoke Conference this past weekend in Ocean Shores, Washington. Got to see the Pacific Ocean. Oh, that's one of my favorite parts of the country,

the Pacific Northwest. It's gorgeous. Yeah. Really beautiful. January might not be peak tourist season, but nevertheless. And right, the idea is Congress stops legislating. So then the executive steps in to fix political problems.

And they don't really care whether they have the constitutional authority because if the court strikes it down a couple years later, they got the press release. They get the credit for trying to fix it. And then it's the court's fault. Right. And all of a sudden the court gets dragged into more and more political fights and everyone benefits. Congress doesn't have to take tough votes. The president gets to swoop in like Superman only on the things he wants to sort of fan service. swoop in like Superman, only on the things he wants to, sort of fan service. Governors win because the party out of power in the White House suddenly has all these lawsuits that they can

bring to get their own headlines. And the only loser is the federal court system, it appears. And the American people. Yes, who don't have any solution, real solution problems based on the separation of powers. So let me go back to that question that was asked of Joe Biden. What's behind your decision to end the COVID emergency? Answer from the president of the United States, the head of Article 2, a separate branch in our checks and balances system of government. Oh, that's what Article 2 is about. We didn't even get to talk about that.

We'll asterisk that. The COVID emergency will end when the Supreme Court ends it. Sarah. Head exploded, David. You know, OK, so let's just put this comment in. There are different buckets for Biden comments. Okay. So one bucket is, does he mean it bucket, right?

So we've seen this with his repeated assertions that the United States is going to defend Taiwan in the event of a Chinese attack, which would seem like the president is altering in some way the longstanding policy of strategic ambiguity. But then you have his administration walking back statements, sometimes within minutes of when they're made. So giving the impression that, oh, maybe Biden is kind of talking out of school, not really saying what true administration policy is or it's just off the cuff or whatever. That's one possibility. The other possibility in the

same with all the controversial Taiwan comments is he knows what he's saying and he's meaning what he's saying, that it's going to be the Supreme Court who's truly dictating the COVID emergency. Which isn't how this works. No, not at all. Not at all. It's up to the Supreme Court when the COVID emergency ends. Is there any better distillation of the grand unified theory of a broken, a constitutional crisis that we are living in than that question and answer. By the way, let's just go down that little cul-de-sac because we did forget or just didn't

talk about that judicial confirmation hearing that happened. So Senator John Kennedy was asking questions of a panel of judges, Spokane County Superior Court Judge Charnell, and I'm so sorry, I am going to mess up her last name, Bajelkrin. She's nominated to be a U.S. District Judge for the Eastern District of Washington. And the question that Senator Kennedy asked her is, tell me what Article 5 of the Constitution does. Now, I think a lot of people and I agree with them, were like,

look, bright lights are on. Article 5, and you're kind of getting it confused with maybe the Fifth Amendment, and you don't want to say it wrong, and you're just drawing a total blank. And she says, Article 5 is not coming to mind at the moment. Article 5 is how you amend the Constitution. It isn't cited very often in life, but it really isn't cited by judges. Right. So I have no problem with that one. Yeah. Next question from Senator Kennedy. How about Article two? This one is cited a lot by judges, a whole lot. That one also didn't come to mind. He then asked her about purposivism, which is a statutory law interpretation approach, interpretory approach. And she said that didn't

come to mind either. I mean, at some point you're just like the harm has been done. So why even answer any of this? I don't care so much about the purpose of this one. Article two, though, when you're trying to be a federal district court judge, I don't love the gotcha questions for these judicial confirmation hearings. However, it goes to their preparation. I mean, you didn't they the White House, the Department of Justice Office of Legal Policy, who generally prepares judges for these hearings. That wasn't part of your prep. Really? Yeah. Just a quick rundown. You were talking about Chevron and Article two happened. Like what?

Yeah. You know, this reminds me of and this is like early old school advisory opinions. We had a Trump appointed judge who went in and just what was it? It was expert witness motions in limine. Oh, motions in limine. Yes. Yes. That's what it was. Motions in limine had apparently no idea what they were. Yeah. Which is a huge part of trial practice, by the way. And we had this discussion and it's coming back. It's all coming back to me now where I the combination or the end of the filibuster meant that you walk into these hearings and if your party is in power, you're not you're kind of chill. You know, you it's in the bag. It's in the bag. But except because of the motions and limine thing, I know, for example,

in the Trump administration, judicial prep went into like high gear. There was never another situation like that. You went to like baby judicial confirmation school and it was like a Barbary course in, you know, how to make sure you knew sort of very basic stuff about trial practice, about the Constitution. Because in fairness, people are coming from different parts of the law. They're not necessarily experts in everything. That's why I think the Article 5 question, it's not that it's unfair, but it's also fair to not know the answer. But Article 2 is just a little rough. By the way, motion in limine just for people who are worried that they're now going to fail their judicial prep. It's about, as David sort of was hinting at, excluding evidence from being presented to the jury. Yeah. These are motions made in the course of trial or pretrial motions that are dealing often with evidentiary issues. Yeah. It's a normal part of trial practice.

And it was embarrassing. And it's also fun to say. It's also fun to say. And, and, you know, it does sort of say something about how much prep would this person do? Because this is a pretty big moment, right? And I remember my boss was nominated in the Bush administration when I was a much younger lawyer. He was nominated to be a federal district court judge, my boss in my law firm. And he just set aside about a month before his confirmation hearing to study everything. And associates of the firm were enlisted to help him get ready. And I didn't know a single person. I mean, I know a lot of people who were up for judicial confirmation hearings, including some who got asked zero questions

at their confirmation hearing who didn't freak out and want to basically have a bar prep course on the Constitution and trial practice and all this stuff because the fear of being embarrassed by something like, you know, motions and limine, but you just aren't great on your feet or you draw a total blank. Yeah, it's odd. So, OK, bottom line, do you think that was disqualifying to become a judge? My view, and I-

Do you think the motions in limine was disqualifying? And do you think this is disqualifying? So here's what I hope I said about the motions in limine, because I can't remember. We weren't doing this podcast at the time. Okay, we were not? No.

Oh, okay, well- I don't think. Well, we'll go to the time. Okay. We were not? No. Oh, okay. Well, I don't think. Well, we'll go to the archives, whatever. This is what I hope I said then, because this is what I think is correct. I think it should be disqualifying. I think that if you're going to have that little preparation for that big of a moment, I'm not sure what that's going to say, because one of the core parts of being a district court judge, one of the core parts of being a judge at all is you need to be prepared and you need to do the reading. You need to be ready to ask. And it's hard because you're going to have, you know, you're going to have a drug possession case. Then you're going to have a commercial litigation case. Then you're going to have a drug possession case. Then you're going to have a commercial litigation case.

Then you're going to have a constitutional case. And so you're going to have a lot of things coming at you at once. And it's hard work to be prepared for all of that. But good judges are prepared. And if you're not prepared at even a basic level for your own confirmation hearing and you're just relying on the pure partisan composition of the Senate to get you through. It's not a very long job interview, you know, and it has to matter in some way.

Right. I so it did happen in December of 2017. We were not potting. We were not. That's true. Matthew Peterson, by the way, was his name and he was a federal election commissioner. He'd never tried a case that wasn't really what his law practice was about. I feel a little different about motion and limine because I'm not sure that that would come up in any preparation. It obviously will now.

But like if you were preparing for a judicial confirmation hearing pre that, I don't know. I don't know. At the same time, I feel like Article two is so basic and so fundamental to being a federal district court judge that that fits very squarely into your basic preparation stuff. And all the more concerning because this person's already a judge. Now, she's a state court judge. So Article 2 probably isn't coming up that often. But nevertheless, presumably very familiar with the state constitution. And you should then know how that's going to interact with the federal constitution. And it is Article 2. I mean, it's the number two article. Yeah, it's the second one. So I guess I think that this is worse now.

In that previous motions in limine debacle, that was a question. Sorry, that that person did remove withdraw himself from consideration. So did not become a judge. No word yet on what will happen here. Just sort of interesting. Yeah, that is that was interesting to me. And by the way, do you know who the question came from on motions in lemonade? Senator Kennedy. Oh, is oh. So he's equal opportunity. He asked the question of Trump appointees and the motions in lemonade, which, again, I think is harder probably or at least harder to prep for. Yeah. And then he asked the article five article to question here. So when you're nominated for Fourth Circuit or SCOTUS and if Senator Kennedy is on the panel, you're going to have to do like con law trivial pursuit prepping. That's where it's so weird to not come in prepared. Like, you know, he's there and you know, this is what he enjoys.

Yeah. Yeah. He's a weird, he's a Republican from Louisiana. Yes. His name is John Kennedy. No, he's not related. And this is like his thing, right? He's, he's very mavericky.

Yeah. He's going to ask you, he's going to ask you Jeopardy style questions about the constitution and you kind of got to know the answer or about trial practice. Yeah. He's going to ask you he's going to ask you Jeopardy style questions about the Constitution. You kind of got to know the answer or about trial practice. So. OK, but I'm still really upset about the Biden. It's up to the Supreme Court to end an emergency that he declared under his article to powers, speaking of which. But anyway, let's move on. David, a grand jury reconvening. I mean, it's a different grand jury, but another grand jury convening in New York City. I think listeners know how I feel about the possibility of indicting Donald Trump. And it's really pretty clear. Do not indict him on novel legal theories.

You do not indict a former president of the United States on a novel or unconventional legal theory. If, however, he clearly violated the law or you have evidence, you believe you can convict him on a claim that he violated the law in a way that's clear and easy to understand and is not stretching existing precedent, but applying existing precedent, then indict him. He is not above the law. And in general, by the way, David, I'd say you're not for stretching criminal law. For anybody. Correct.

Right. This is the rule of lenity, right? The tie goes to the runner. We don't have new novel theories of how you can go to jail. Yes. So that's what I just said, Sarah, was a too long way of saying just treat him like you should treat a normal citizen, which is not. Neither above nor below. Yes, exactly. That's that should not be a a novel legal theory is not the way to try to send someone to prison. So let me let me begin with this. This is a report from The, and it says Manhattan prosecutors begin presenting Trump case to grand jury. The Manhattan district attorney's office on Monday began presenting evidence to a grand jury. What about Sarah? About Donald J. Trump's role in paying hush money to a porn star during his 2016 presidential campaign. Wait a second. That sounds so familiar. We already did that, but OK.

Laying the groundwork for potential criminal charges against the former president in the coming months, according to people with knowledge of the matter. Now, the grand jury was recently paneled in the beginning of witness testimony presents a clear signal that the district attorney Alvin L. Bragg is nearing a decision about whether to charge Mr. Trump. So the question I had is, from an ethical point of view, I have major problems with paying hush money to a porn star to conceal the affair that you just had on your third wife. Yes. Newsflash.

I have problems with that. That is not good. However, where I'm I'm struggling, I'm struggling with the law. What is the criminal law that is clearly violated when you pay somebody not to talk? to talk. And there is this interesting paragraph in the story. A conviction is not a sure thing. Oh, do tell. In part because the case could hinge on showing that Mr. Trump and his company falsified records. Now, OK, I got that. To hide the payout from voters days before the 2016 election, a low level felony charge would be based on a largely untested legal theory. There's also the matter that the case would also rely on the testimony of Michael D. Cohen, Mr. Trump's former fixer who made the payment and who himself pleaded guilty to federal charges related to the hush money in 2018. OK. It's funny. I think so.

You put this in our Slack channel right before I put the Biden thing. And we're both feeling very ranty about some stuff. But I think my beef with this is slightly different than yours. Oh, I'm eager to hear. They already did a grand jury on this exact same thing with the last district attorney. And the district attorney decided based on that, that they did not have the evidence to move forward and therefore disbanded the grand jury and moved on. And it resulted, by the way, two prosecutors quit the district attorney's office. Now there's a new district attorney. I don't love the idea of prosecutors sort of perpetually pursuing the same thing, if that makes sense. Right. I get that it's a different person.

I get that there were prosecutors who were mad about it last time. But at the end of the day, there should be a decision made, and that decision should hold for the office. Trump like any other person. What you don't want in a criminal justice system is a perpetual cloud hanging over people as a means of political revenge. Right. No, I get it. I agree with that completely. And, you know, let me add the caveat. If you have falsification of records that violates clearly, cleanly applicable criminal statutes, then we're talking about something that might fit within that within my fit that test that should apply to all citizens, not just the former president. Except they already did it. We know they didn't have that. That's right. That's what the other grand jury looked at. They didn't get it. They didn't have

it. And I mean, again, take out Donald Trump and imagine that this is anyone who you don't like or anyone you do like who is in the public eye. So all you have to do to get headlines for yourself, get bad headlines for them, is keep convening grand juries, not actually indicting. And then you just get to keep doing this until the statute of limitations runs out. And then the other thing that I'm worried about here is so he's convening a grand jury in New York. We've had a special grand jury, a special purpose grand jury in Georgia, just wrapped up its work, has issued a report. There was a hearing last week over whether the report was going to be made public. Do they not realize, do people not realize that actually the more grand juries that are going after the president, the better it is for him?

Yes. But the individual incentives, David, for this district attorney in New York, the new one, these are great headlines. He's the front of the New York Times. They're not good incentives. And I do think it helps Donald Trump because the last one fell flat. Now it's this one again. It looks like a witch hunt. And in the meantime, when Fulton County actually comes out, they're going to be able to say this is just happening everywhere. They're all blending together. different partisan actors trying to come after the former president, which, again, I think you and I have have been very clear on this podcast what we think of the various actions ethically and legally, by the way. But that's not the point. If you know who should be the angriest person in America right now about this Fannie Willis, Fulton County prosecutor. It's a great name because Fannie Willis has, in my view, and I've and we've had a discussion about does Trump have a defense to Georgia criminal statutes based on the possibility that some of his conduct was would have been official acts as as president?

We've had that discussion. But if you're comparing conduct to statute, the clearest match of criminal conduct and criminal statute is Donald Trump's conduct in Georgia under Georgia state law. It's a very close match. And Fannie Willis has him on tape. She has him on tape. And so what I fear and what I think could well happen is what you would then immediately have is a dilution of the impact of whatever is in the Georgia grand jury report. Because then again, oh, it's just another blue city going after a Republican president. And it's really frustrating. It's really frustrating.

And when you're talking about novel legal theories, going after people for novel legal theories, that's as you said, Sarah, that's not just saying we should treat presidents, former presidents the same as everyone else in a way that's treating them worse, treating them worse. And that's that's destabilizing. OK, OK. That's the ranty part of the podcast. I think we're good now. Let's get into some legal weed eating. So it's conversion therapy, dissentals time. Oh, nothing like a very non-controversial topic for the AO podcast, but please. Here we go. So Washington State banned the use of conversion talk therapy for minors. Conversion therapy here is where you try to use therapy to change or persuade someone to have a different sexual orientation or gender identity. This is a 2018 law. Here I'll quote. Performing conversion therapy on a patient under the age of 18 is a form of unprofessional conduct subject to discipline.

Conversion therapy is defined as any regime that seeks to change an individual's sexual orientation or gender identity. So in the Ninth Circuit, this went up and the panel held that the law was fine. And then there was a vote for en banc review. Remember, we just talked about that in the Fifth Circuit and how en bancs kind of work there. And denied. There was not a majority to revisit that question. But we have two dissentals, dissent from denial of en banc review. And they're by some pretty impressive Ninth Circuit judges.

So I just wanted to talk about them a little. So the first dissental comes from Judge O'Scanlan, who's actually on senior status. So he doesn't get to vote on whether to take something on bunk, but he can write. Right. Joined by Judge Okuda, Nelson, and Van Dyke. Is therapeutic speech speech? Is therapeutic speech speech? Does a tradition of licensing a given profession override all First Amendment limits on licensing requirements? The three judge panel answered no to the first question and a majority of the panel answered yes to the second.

In my view, both holdings are erroneous and significant constitutional misinterpretations. And I respectfully dissent from our court's regrettable failure to hear this case en banc. So this is a really interesting speech case, David, because the panel said that therapeutic speech is non-speech conduct. Right. And is therefore only protected by rational basis review. The state has a rational reason to want to do this. Therefore, it was sort of the end of the analysis in a lot of ways. But it was based on a different Ninth Circuit precedent. And the question is whether the Supreme Court overturned that precedent in the NIFLA case. Yes. And I bet you remember NIFLA well. I do remember NIFLA well. I filed an amicus brief in that case. That's a 2018 Supreme Court case. Do you want to walk us through the NIFLA

facts? Yeah. So NIFLA was a case involving crisis pregnancy centers. These are pro-life pregnancy centers where women will come. Sometimes if the pregnancy center has ultrasound facilities, they can get an ultrasound and have a medical professional talk to them about their baby. Some of them don't have medical facilities, but women will come in for pregnancy resources such as where can they get financial help? Or are they interested in adoption? How can they get help if they don't want to adopt? How can they get help raising their child? It's a pro-life, direct person-to-person engagement to try to meet women where they are and provide for them in a way that allows for them to carry a pregnancy to term, raise their child. I've long been a supporter of crisis

pregnancy centers. I've raised money for them. I've given money to them. I've defended them in court. And what California said was essentially, well, wait a minute. These are medical facilities and you can regulate medical facilities heavily. And they are, it's absolutely the case that medical facilities are heavily regulated. And part of our regulation is we're going to require these facilities that are engaged in counseling, engaged in providing some medical advice. They're going to require them to inform the women who come to the pregnancy centers of the availability of free or low cost abortions under California law. of free or low-cost abortions under California law. So here you have a pro-life center. Its entire purpose is to advocate for life. And the state is coming in and saying,

what you actually have to do, we're not gonna stop you from advocating for life, but you have to also provide information about free and low-cost abortions. And the pregnancy center sued saying, this is compelled speech where you're compelling expression completely contrary to the mission and purpose of the organization. And the Supreme Court in a 5-4 decision, I believe it's Justice Thomas writing, in a

5-4 decision sided with the crisis pregnancy centers. And one of the issues was if you're going to have professional speech, is there a category of speech called professional speech that can be more heavily regulated by the state? And here you have a kind of a form of that therapeutic speech, which, according to the Ninth Circuit here, can be extremely regulated by the state. It's sort of fascinating. So this pickup case that comes before NIFLA is about conversion therapy. It's a California law. Instead, it's about sexual orientation, not gender identity. And the Ninth Circuit upholds that California ban on conversion therapy and pickup. In NIFLA, the Supreme Court specifically cites pickup and criticizes it.

Mm hmm. Here, the panel is like, yeah, yeah. But they were only criticizing one part of pickup and not the part that applies here. So this now, I'm going back to Judge O'Scanlan's dissental. protection for speech by licensed professionals, from most protected public dialogue to least protected professional conduct, with professional speech within the confines of professional relationship somewhere in between. The conversion therapy ban, according to Pickup, was in the least protected category, a mere regulation of conduct protected only by rational basis review. Since NIFLA only abrogated the theoretical midpoint of Pickup's continuum, the panel here reasoned that Pickup's approach survives

for regulations of professional conduct. Of course, that leaves us in a weird place, David, which is talk therapy is by definition speech, but it is also by definition, medical conduct. Right. So which is it for constitutional purposes? Which is it for regulatory purposes? I think that's really messy. The panel, again, who upheld the law, according to Judge O'Scanlan, a majority of the panel purported to discover a, quote, long if heretofore unrecognized tradition of regulation which warrants applying only rational basis review to laws burdening therapeutic speech. David, that gets really messy. It gets so messy.

It gets really, really messy. It gets so messy. It gets really, really messy because it would mean anything a doctor says can be absolutely regulated in its entirety by the state, that everything in that conversation is conduct, not speech. Again, as Judge O'Scanlan puts, we should have granted a rehearing on Bonk to clarify that regulation of the medical profession is not a First Amendment free zone. Yeah. Which I kind of agree. That's what this means. And also the other thing that's important to acknowledge here, counseling is a values laden process.

And people will go to counselors and select counselors sometimes because of the values of the counselor. Sometimes they will go to counselors because they're having difficulty aligning their behavior with their values and they want to align their values and their behavior. There are a lot of different ways and reasons why people go to counselors that are laden with religious belief. They're laden with cultural issues. I had a case at the Sixth Circuit, this is years ago when I was at ADF, where a woman named Julia Ward was in a counseling program at Eastern Michigan University. And part of counseling was a practicum where you would actually counsel real clients sort

of towards the end of it. And one of the counseling, one of the referrals that came in was a person who wanted counseling to make his same-sex relationship, to repair rifts in his same-sex relationship. And she said to her teacher, I'm happy to counsel a gay client, absolutely, but I don't want to, if they're having trouble with work or if they're having trouble, but counseling them on maintaining and solidifying their same-sex relationship would violate my values. Can you refer him to a different counselor? They referred him to a different counselor. He never knew. Like this person never knew that he'd been referred to someone else.

From his standpoint, there was no harm at all. From her standpoint, she was thrown out of the program. And thrown out of the program because they said she committed a discriminatory act, that there should be no such thing as a values-based referral. and thrown out of the program because they said she committed a discriminatory act, that there should be no such thing as a values-based referral. In other words, my values, you're wanting me to counsel you towards something that violates my own values. And they said there should be no such thing as a values-based referral and tossed her out of the program. Just boom. We filed suit on the grounds that there was religious discrimination, that this implicated her own freedom of speech.

And Sixth Circuit, we not only did we lose at the district court, Sarah, I argued at the district court. And then my colleague, I believe Jeremy Tedesco, argued at Sixth Circuit. So I argued at the district court. And not only did I lose that while I was arguing, I never had this happen in my entire career. The court reporter was glaring at me like I had like I was Satan incarnate there. Well, the horns do give it away. Oh, my goodness. And then actually he interrupted me

more than one time in my argument. The court reporter? The court reporter. That's kind of a no-no. Yeah. I'm sorry. You need to repeat that. I didn't get it. You know, it was really interesting. I lost at the district court. Oh, did I lose. But the Sixth Circuit reversed the district court and sent the case to a jury, but it was settled before trial. I mean, is that actually true? Like, let's take an easier case, a different and easier case. Let's assume someone comes to you and says that they are married, their spouse thinks they're happily married, but they want to continue having high risk sex, um, unprotected with prostitutes or, you know, some, some other high risk behavior

that could endanger their marriage, obviously, and their spouse. And they want help, you know, talking through ways to do this well or something. I mean, as a therapist, would you be required to help that person with something that just like conflicts with your values, not even at a religious point, but like in a if I just I don't I don't know how I'm going to help you with something that I just so fundamentally disagree with. Yeah, it's interesting. And this was something that was we had, you know, we had a competing expert testimony on this point. And one of the provisions of the ACA, American Counseling Association Code of Ethics, was counselors, one, are aware of their own values, attitudes, beliefs, and behaviors.

And two, avoid imposing values that are inconsistent with counseling goals. That's kind of vague. And counselors respect the diversity of clients, trainees, and research participants. And so that was that they said that she violated that provision. Her argument was, how could I violate that provision? Because I didn't counsel the person at all. Yes, there's that. Yeah, I made a referral. But there was there. This was and here's another this other provision. Counselors do not condone or engage in discrimination based on age. You know, the standard list of protected categories and counselors do not discriminate against clients, students, employees, supervisees or research participants in a manner that has a negative impact on those persons. And look, you know, these are the counseling associations code of ethics, but as a lawyer walking into that code of ethics, I, it was, they're so vague. So vague. They're incredibly vague. And which led to room for discrimination against Julia Ward.

And so anyway, it's not an exact match with this Ninth Circuit case, but it does show that this issue involving counseling, it's values laden. And getting back to our conversion therapy case here, you'll notice Judge O'Skinlan's dissental is all on the speech question. Yeah. But let's move to Judge Bumate's dissental. Judge Bumate and I went to law school together. I consider him a good friend. He's a friend of the pod. Nice. He was in our little Christmas episode a couple of years back. Relevant perhaps to this discussion is that Judge Bumate is married to a man and they have two little girls. Okay. The issues at the heart of this case are profoundly personal. Many Americans

in the state of Washington find conversion therapy, the practice of seeking to change a person's sexual orientation or gender identity, deeply troubling, offensive, and harmful. They point to studies that show such therapies ineffective. Even worse, they claim that conversion therapy correlates with high rates of severe emotional and psychological trauma, including suicidal ideation. Under the appropriate level of judicial review, these concerns should not be ignored. But we also cannot ignore that conversion therapy is often grounded in religious faith. According to plaintiff Brian Tingley, a therapist licensed by the state of Washington, his practice of conversion therapy is an outgrowth of his religious beliefs and his

understanding of Christian teachings. Tingley treats his clients from the perspective of a shared faith, which he says is conducive to establishing trust. And as part of his therapeutic treatment, Tingley counsels his clients to live their lives in alignment with their religious beliefs and teaching. To be sure, the relationship between the LGBT community and religion may be a complicated one. But as with any community, members of the LGBT community have different experiences with faith. According to one 2013 survey, 42% of LGBT adults identify as Christian. 43% consider religion to be very important in their lives, including 20% who say it is very important to them.

He continues to cite other things like this and goes on to talk about the religious issue, which I think is much closer, David, to your Sixth Circuit example. But I really enjoyed the way it ended here. Because the speech underpinning conversion therapy is overwhelmingly, if not exclusively, religious, we should have granted Tingley's petition for en banc review to evaluate his free speech claim under a more exacting standard. It may well be the case that even under heightened review, Washington's interest in protecting minors would overcome Tingley's free speech challenge. But our court plainly errs by subjecting the Washington law to mere rational basis scrutiny. A, I just thought that was a interesting, well-done dissental by Judge Boumete. But also, that line in particular

is like the ballgame for me when it comes to whether the Supreme Court is going to grant cert in this case. It's a tough call. Interesting. Yeah. Because on the one hand, I think Judge O'Scanlan is very persuasive in that now in the Ninth Circuit, doctors are a free speech, free zone. But at the same time, this only applied to minors. And there is going to be a fairly compelling, I don't know how compelling, but pretty compelling state interest in protecting minors from certain types of medical treatment, even speech-based medical treatment, because their ability to consent is so much different than an adult's. And so while, for instance, this therapist only works with consenting minors, like what does that mean? What is the consenting minor?

What's a consenting minor when we're talking about conversion therapy? And so I think that's interesting. And it may be enough that a case that I think the Supreme Court would otherwise grant cert on passes and waits for a different vehicle. passes and waits for a different vehicle. Yeah, this is this is peeling an interesting onion, because if it's applying to adults and children, it's a different case. I think the Supreme Court grants cert on that pretty easily. I think it's Supreme Court grants cert. I think the Supreme Court upholds the right of an adult patient to seek out a therapist.

Stems, NIFLA, all of that. Exactly. Really overturns pickup this time. All of it. The whole continuum. Exactly. Really overturns pickup this time. All of it. The whole continuum. Exactly. Oh, by the way, before I forget, guess who wrote the Ward v. Pollitt opinion? At the Sixth Circuit?

Friend of the Pod, Judge Sutton. Judge Sutton. Yes. Yes. Friends of the Pod just pop up everywhere. But, yes, so I think that the element here where you're talking about minors is we're heading for. A significant Supreme Court case over not just this, but parents rights. Oh, gosh, I think we're headed. I mean, this is the conversion therapy side of a state regulating treatment of minors. But obviously there's all sorts of governors who newly elected governors where the first thing they did as a newly elected governor is ban certain types of transgender hormonal based treatment for minors in their state.

It's interestingly going to be a very similar look at this because it goes to that interest question. Does the state have a compelling interest in controlling medical treatment for minors who can't really consent? Right. And then you've got the parental rights issue. And the parental rights issue is just looming out there. I mean, I wrote a whole Sunday French press several months ago that just generated a lot of intense feedback, where a very intense feedback, because I was saying, wait a minute, in all of the conversation that we're having about what should or should not happen to kids at the state regulatory level,

parents are being left out of this. And so California has enacted a law that could permit somebody to literally take a child into California for gender-affirming treatment over the objections of parents, which is pretty stunning. And then Texas has instigated investigations of parents who have provided legal gender affirming, gender conversion, whatever terminology you want to use, treatments for their own children. And so one, the state is saying, absolutely, if a child wants to transition, and they're going to be able to transition even over parental objection. And Texas is saying, if parents want to facilitate a transition, that transition cannot happen,

or there could be state intervention in the family. And we need to be really careful about this from the standpoint of I know people feel very, very, very intensely about this issue on both sides of it. And I have my own feelings about this issue. But I also feel very strongly about parental rights as well. And how much are we going to delegate to the legislature? But that's why I like when these come up at the same time. Yeah. Because if you think that Washington state should be able to ban conversion therapy,

then you also need to believe that Texas can ban gender affirming treatment. Right. And if you believe that California should not be allowed to basically have minors choose on their own to have gender affirming treatment and cut parents out of it, then you also have to marry that with Texas cutting parents out of the decisions on how to treat their children medically. I think it is helpful when these come up together and at once versus 20 years apart. Yes. No, I think you're right. I think you're right.

But we're heading for a Supreme Court collision on this issue linked with parental rights that will be, could be the most contentious case since Dobbs and with radiating effects on parenting in the United States, way beyond the gender identity piece. So it's I am. Yeah, I'm keeping two eyes, two eyes on this. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

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watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, David, moving to our next case. This is one of those lawsuits about a state abortion law that comes from the left saying that it violates one's religious beliefs. For instance, we talked about a Florida version, very similar lawsuit brought by Jewish plaintiffs saying that the that the restrictions violated their beliefs.

This is very, very similar. This is about Indiana. And I bring up all of this because there was an amicus brief filed by Beckett Fund that is a Christian affiliated legal representation group. We've talked about them before on this podcast. I have lots of admiration for Beckett. They have done they've been there. There are they the most accomplished religious liberty firm at the Supreme Court? Probably. Yeah. You know Yeah. It's close. I mean, ADF's done very well of late, but Beckett has won many cases and not just for Christian plaintiffs, by the way. Beckett is very consistent in its defense of religious liberty and has defended people across the religious spectrum. So I just want to preface that. Because this is

going to get interesting. Because love you guys, but okay, go ahead. Reading from their brief. Indiana's Religious Freedom Restoration Act strikes a straightforward balance. The state can govern, but when that government burdens a person's religious exercise, an injured party can go to court to seek a remedy. If the state can avoid burdening sincere religious exercise, it must. court to seek a remedy. If the state can avoid burdening sincere religious exercise, it must. RFRA does not dictate that religious claims always win. Its test is rigorous and it is applied rigorously. Sort of like that sentence, actually. Good sentence. It's a good sentence. Plaintiffs are misusing that law. Their RFRA argument fails at each step. First, plaintiffs offer pure speculation about when they might someday somehow experience an injury.

You know, this is the hypothetical future about a future pregnancy, although I have to say that's generally how these cases come up. Second, the court below failed to consider evidence that plaintiffs' beliefs are insincere. Plaintiffs have not shown that their beliefs are truly held. Plaintiffs say they are religiously obligated to seek abortions up to the ninth month. But Indiana law has never conformed to their alleged religious beliefs that they must terminate any pregnancy that endangers their physical, mental, or emotional health to an unspecified degree based on a subjective self-assessment. Despite this discrepancy, plaintiffs raised no religious objection to Indiana's prior abortion regime, and several of them openly embraced it, even though it effectively banned abortions after 20 weeks. Why the sudden change of heart? There is a reasonable inference that the true reason plaintiffs filed this lawsuit is because they disagree with the Supreme Court's intervening decision in Dobbs, not because their alleged religious beliefs are truly held.

David? Okay. David, I'm so fascinated. We've talked before on this pod and you say that you do not look at the, you know, sincerity of one's religious beliefs, i.e. is that really part of the Jewish faith? And yet here is Beckett, as you say, the premier religious defending legal organization saying, OK, OK, but like at some point this is insincere and you've got to be kidding us. OK, so, Sarah, how it one of the most remarkable things about this time is how every constitutional issue now seems to have a corollary on the right and on the left.

So we just talked about parents' rights with gender identity. on the right and on the left. So we just talked about parents' rights with gender identity. Questioning sincerity on this religious liberty suit, now do vaccines. Well, and I also remember the case of the person who sued about the insurance coverage mandates that had to cover HIV prep drugs because that encouraged homosexuality and drug use. The drugs themselves aren't against their religion. It's that the taking the existence of the drug and the availability of the drug would encourage something that someone doesn't agree with. There was a real, I thought, sincerity question to be raised there, except that we don't do that.

We take it face value that you say it's a sincerely held religious belief. And at the point that we start questioning the religious beliefs, messy, messy. Yes. So there's a difference between Sarah Isker, the person, and Sarah Isker, the judge. OK, so Sarah Isker, the person, could say So Sarah Isker, the person could say to these plaintiffs, wait a minute. This really seems like a more of a creative collateral attack on Dobbs than an actual expression of sincerely held religious beliefs based on all the factors mentioned in that brief that, wait, I didn't see similar claims in the past in related circumstances, et cetera, et cetera, et cetera. And similarly, you can turn to David French, the person,

not David French, the judge, could turn to someone who's saying, I have a religious objection to the COVID vaccine. Why? Well, because of this, this, and this. Well, wait, all of those factors are present in all of these other medicines that you take. Tons of them. And you've never raised objections. Why now? And the reality is, truth be told,

let's just real talk here, Sarah. There's a thought process some people go through. There's something about as simple as this. I don't want to do that. And I'm a Christian. simple as this. I don't want to do that. And I'm a Christian. Therefore, I must not be wanting to do that because I'm a Christian. Right. And that's not the same thing. However, if I'm David French, the judge. Do you want the government of the United States of America saying, you know, I don't think that's a sincere religious belief. Based on my reading of the Torah. My Torah says, or, you know, or your inconsistency or your hypocrisy, or I don't follow your religious reasoning. Therefore, it is not a sincere religious belief. that is not a road we want to go down. And it is it's a dangerous road. So I and we talked about this a bit in the vaccine situation now and at the same time.

It is traditionally been a part of the test that there is a you know, there's a sincere religious objection. But does this really, so I take their point that this same objection could have been raised 10 years ago about Indiana's law. But does that go to the sincerity? Right. It can be your religious belief

and A, you could be a relatively young person. So you're 25 years old. Is it not sincere? Because 10 years ago, you didn't raise this because you were 15. But also, what if you weren't aware of Indiana's law before this? And yes, Dobbs is the thing that made you aware that Indiana's law violated your sincerely held religious belief. I don't know how you're going to parse all that.

Yeah, it's rough. It's rough. At the same time, I find, I mean, talk about like it's important. These are coming up at the same time. I thought that the HIV prep drug thing was stupid. Right. Yeah. And so am I struggling because I find one to be more reasonable than the other, even though they're both quote unquote sincerely held religious beliefs. I would argue, back to myself, that the HIV PrEP drug thing is attenuated and that's my actual concern. Not whether it's sincere that he objects to homosexual behavior and drug use due to his religion,

but rather that the PrEP drugs aren't the thing violating your religion. Right. Too attenuated. It has to actually be the act itself. In this case, abortions. That's actually the act itself. But yeah, I just I wanted to get your take on that. To me, the sincerity analysis is not does your belief system make sense and have you have you consistently upheld it?

It is. Is it your belief system? In other words, if I, if in discovery, it's like, uh, I'm actually an atheist, but I'm posing as a Christian. Yes. You know, that's fair. But if you just converted last week, it's sincerely held this week. Correct. Correct. Yeah. It would have to be, this is a con. Like this is a con. I am conning the court. I'm a Hindu posing as a Muslim. I mean, what? Is this brief going to get thrown back in Beckett's face at some point? That's a good question.

You know, I'd be, I know we have Beckett listeners. I know we do. So, hey, guys, what do y'all think? Let us know. You guys have our email. Let us know. And as you said, just in case it needed to be said again, Lori Windham, who is sort of counsel of record on all these cases,

is a fantastic attorney. So I'm sure she thought this through. Yeah, I know. Like I said, Beckett's great. So all right, let's stick on the abortion topic because that's non-controversial. It's easy for people to come to. So wait a minute. We've covered COVID, conversion therapy.

Uh-huh. Trump. Trump. Gender identity. Yeah. And then we're going to do abortion back to back with another abortion case. Jeez. Okay.

Wow. All right. So I've talked about DOJ's policy on when to bring cases before. They don't just bring the cases that should be brought. They bring the cases that they believe they will win at trial. And there's a few reasons for that. I thought Rod, when he was on the pod, did a pretty good job explaining it. But one of those reasons is because of the then future reputation of the Department of Justice, i.e. when the feds indict you,

they're going to win. And that's important for people to know and believe when the feds come knocking at your door. It's also and this is the part I thought Rod explained. Well, it actually is good policy. You don't want prosecutors bringing cases because they personally believe the person's guilty. But maybe a jury will agree with them. Maybe they won't. Maybe the evidence is convincing. Like, you have limited judicial resources, prosecutorial resources. You bring the cases, you can win. Mm-hmm. So, DOJ brought a Face Act case against a man who was accused of a pro-life activist

who was protesting outside an abortion clinic, who was accused of pushing to the ground a pro-choice activist. And that was a violation of the FACE Act, which basically federally protects space outside abortion clinics. There were a lot of complaints from the right about this case being brought in the first place, that it was massive overkill, this wasn't a proper use of the FACE Act, that they came with tons of long guns to this guy's house. He's a father. He was never a threat.

Those sort of 6 a.m. knocks are not useful here. I am pretty unsympathetic to the DOJ uses too much, not force, like just humans to arrest someone. I've been on the receiving end of the calls where our guys don't come home. So more force, the better. You don't know who's answering the door. You don't know who's there. 20 guys who don't do any harm to you doesn't hurt you at all compared to one guy who gets shot in the chest, as happened in Chicago to one of our ATF agents. So I'm unsympathetic to those arguments. I'm very sympathetic to no knock. Yeah, yeah. This is like, knock, we're coming to arrest you. And then there's 20 guys with guns at the door who come to arrest you. And you didn't need any of those guys. You would have happily come with them. I get all of that. You don't know who's who, though. Right. But,

David, he's found not guilty after a trial. Very unusual for DOJ to lose this. Embarrassing. And the right is really trumpeting this as political case overreach by the Department of Justice, proof that they are biased against pro-life activists. Interestingly, the Department of Justice did bring charges against two crisis pregnancy center attackers, vandalizers. Vandals. Yeah. Under the FACE Act. Under the FACE Act. Yes. So giveth and taketh away. I was curious if you had any reaction to it. I watched the video and I think it is interesting. On the one hand, the pro-life activist is in a different spot and the pro-choice activist comes to him.

He's saying that he was harassing his son, the pro-life activist's minor son. That being said, there's also no question that he assaults him. He's saying that he was harassing his son, the pro-life activist's minor son. That being said, there's also no question that he assaults him. He pushes him to the ground. That's assault, right? Like you don't get to push people to the ground. So David, what'd you think? Yeah. You know, the intent of the statute is to protect access to clinics. And so you have to put that in mind when you're thinking about a prosecution. Was this an altercation where he was trying to prevent access to a clinic or were these two guys facing off over a disagreement? Clearly the latter. With a kid involved, right?

Clearly the latter. It was assault, but it's not near the door. It's not about preventing anyone from getting access. These are two guys who are exchanging words and can't control their tempers, frankly. Right, right. Exactly. But it's not near the door. It's not about preventing anyone from getting access. These are two guys who are exchanging words and can't control their tempers, frankly. Right. Right. Exactly. And so that you're you're it's a it's a complete mismatch with the statute. If if there's an issue here, it's a state criminal law issue involving assault and battery. You don't get to push people down on the sidewalk no matter what they say to your kid.

Yeah. But even then, you don't necessarily want to go to a jury as a prosecutor. Like, yeah, but here's what he said to my kid. Here's what he said to my kid. That's right. And about half the jury would go, I would have punched him too. Exactly. Exactly. It always reminds me, I mean, this is the most extreme example, but in the, this was

a federal case, in the case about the man who had been sexually abusing gymnasts and the father with multiple daughters tries to get him. No jury in America. In fact, I think most of us were only sad that he was prevented from finishing. Yeah, right. That there are there are certain things where I'm not a believer in the he needed killing defense. That is that's a bridge too far. But that he needed pushing or punching is a much more valid kind of defense. Wow, David. Yeah. Wow. Sorry. But yeah, I mean, that's, you know, when it seems pretty clear from what I have seen of the case, this is did not was not encompassing the intent of the statute. If he had pushed the man while he was escorting a woman into a clinic as part of an effort to impede access to the clinic. That's the statute, right? That's the statute.

Yeah. Or they tell him to move off the steps of the clinic. He's the statute, right? That's the statute. Yeah. Or they tell him to move off the steps of the clinic. He says no. They start yelling at him. Then he pushes them back toward, you know, all sorts of versions, all kinds of versions that are definitely about access. But some dude starts jawing with his son. Yeah. And I don't know all that was said. And walks down the sidewalk to go talk to him and his son. Yeah. So leaves the front of the clinic. down the sidewalk to go talk to him and his son. Yeah. So leaves the front of the clinic. Yeah. Yeah, exactly. That seemed to be not in not encompassed within. Bad loss for DOJ. Yep.

Didn't like it. Hate to see it. Yada yada. All right. Jack Phillips loses. So this is a if this is feeling like deja vu. Jack Phillips, the cake maker, this is Masterpiece Cake Shop. He refuses to make a custom cake for a gay wedding. The Supreme Court basically sends it back kind of not technicalities. I hate that term, but on process on reach on religious animus during the process. Yes. But does not have some overarching. You don't have to make a cake for a gay wedding. That's how we have then 303 creative. Exactly. Jack Phillips, by all accounts, tries to go about his life at that point. And lo and behold, the phone calls keep coming. This time it's for a cake with, I'm going to get the which one's which, but like blue frosting and a pink cake. And wife answers the phone or some employee answers the phone and says, yeah, no problem. And then the person's like, it's for my transition

to celebrate me becoming a woman or a man. I forget which one, which direction. And they say, oh, I'm sorry. We can't make that cake because of the purpose that you're saying, because that conflicts with our values. Jack Phillips, clear that if they sold pink frosting cakes with blue middles or vice versa, and they were just out in the display case, you can pick one up for whatever reason you want.

But they don't. And if the person hadn't continued to say what the cake was for, they already had agreed to make it. No problem. But once they knew what it was for, same exact thing as the gay wedding, conflicts with the values,

they don't want to participate, same exact thing as the gay wedding, conflicts with the values. They don't want to participate. And they have their artwork participate. It goes through the exact same process, David. And he loses. Yep. And is held to violate that Colorado Anti-Discrimination Act. Here we go again.

Except this time it's up through the state court system. Well, it is up through the state court system again. Okay. Up through the state court go again. Except this time it's up through the state court system. Well, it is up through the state court system again. Okay. Up through the state court system again. Without the religious animus elements amongst the decision makers. Not out loud. Not out loud. So there was obvious religious animus in the actual process,

which led, by the way, to Jack Phillips winning 7-2. I mean, that's something a lot of people forget about that case. And the Masterpiece Supreme Court case. The Masterpiece Supreme Court case. Justice Kagan and Justice Breyer sided with Jack Phillips. Another one of these religious liberty cases decided by a supermajority. There's a number of them. But this is a different record, a different, you know, different conduct by the decision makers. And this is much more squarely in the 303 creative lane, which is and and will

be deeply influenced by the outcome of 303 creative, which may very well and is likely to turn on, is baking that cake an expressive act that cannot be compelled by the state? And so that's likely what we're going to have this finally turn on. So he's still in the process. And you know what, Sarah, depending on what 303 Creative says, he may not be in the clear. provide provision of a service as opposed to an expressive, you know, engaging in expression provision of a service is going to be protected. He's going to have a religious liberty or free speech right not to provide a service. I'll put money on this, though. Yeah. So the court has something called GVR granted vacate remand in light of another decision. Yep. This is getting GVR'd. I would. Now, maybe it won't provide clear guidance. Maybe he won't win based on the GVR. Now, mind you,

this actually hasn't gotten to the Colorado Supreme Court yet. I'm just anticipating. Yeah. Yeah. So it will be the Colorado Supreme Court will consider it after 303 creative. Yeah, that's a good point. Yeah. So maybe this won't be necessary. Jack Phillips has been doing this now. We're certainly in 15 years. We might be closing in on 20. Yeah, I'm going to have to revise my old lawyer's joke, which was the great thing about America is that everyone gets their decade in court. Yeah.

This is getting longer than that. Wow. Wow. Longer than that. Wow. This the person who asked for the transgender cake, according to ADF vice president, also asked them to create a cake of Satan smoking marijuana. Right. Clever. I mean, at some point they're going. The point is they're targeting Jack Phillips because of Masterpiece Cake Shop to try to tie him up in litigation, which I think by itself goes. I mean, talk about sincerity, right? You didn't really want this cake. No, leave the man alone. Leave the man alone. You don't need a cake from Jack Phillips. That is not what is happening here. It's not like this is the only

cake maker in 100, 200 mile radius. And the only guy who can possibly give you that coveted Satan smoking a cigarette cake that you've always wanted your whole life. Just leave the guy alone. It's interesting because it doesn't really fall into frivolous if it were malicious prosecution or something, but perpetually targeting someone with new allegations, it's harder. Yeah. I mean, obviously this is not a case that is vexatious litigation. In other words, there is a legitimate legal issue at hand, but the legal issue is legitimate. The intention is vexatious. Is vexatious. Yeah.

Yes. Yes. And I wish there were maybe something about that. All right. Last up, we're going to go a little long today because we're together in the same room, David. Yes. All right. Last up, we're going to go a little long today because we're together in the same room, David. Yes, same room. And Justice Kavanaugh gave a fun speech at Notre Dame last week and he was asked, well, I'll just read it to you. This was a Q&A from the dean. So since you're using sports analogies, next question is, do you think your concurrence in NCAA versus Alston could cover fields and bodies beyond college football? For example, like law journals or the Notre Dame Law Review?

First of all, that's a fun question. It is. Fun and, yeah, I'm curious. And this would be about payment. Yeah. Yes. about payment. Yeah. Yes. So NCAA v. Alston, as many of you will remember, was the, yeah, I mean, the case about image likeness. See, you're going to know this. What is it? NIL. Name, image, likeness. But Justice Kavanaugh writes this whole little concurrence that's like,

yeah, yeah. So our case was about educational related benefits, but I'm just here by myself to tell you that I'm really skeptical of everything else you're doing and how that also might violate antitrust. One might say, David, that it was a little bit advisory opinion-y maybe. Yes. First, the court, I'm going to read from his Alston opinion here. First, the court does not address the legality of the NCAA's remaining compensation rules. As the court says, the student-athletes do not renew their across-the-board challenge to the NCAA's compensation restrictions.

Accordingly, we do not pass on the rules that remain in place or the district court's judgment upholding them. Our review is confined to those restrictions now enjoined. Second, although the court does not weigh in on the ultimate legality of those rules, the court's decision establishes how any such rules should be analyzed going forward. I'm going to skip the way he laid that out. Third, there are serious questions whether the NCAA's remaining compensation rules can pass muster under ordinary rule of reason scrutiny. In my view, their arguments are circular and unpersuasive. And this is the line for the ages, David. Price fixing labor is

price fixing labor. Love it. And price fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair market compensation for their work. All right, back to his speech. As we say in church, preach that. That'll preach. Here's Justice Kavanaugh's answer to that question. And he just flies with it i mean soars definitely you know i can't even understand the question i will say ncaa versus alston if you asked me you've been on the court for four years what's your favorite opinion the opinion you think you know you'd like the most it would be no surprise that ncaa versus alston my concurrence and It would be no surprise that NCAA versus Alston, my concurrence,

and that would be right at the top of my list, probably also with Flowers versus Mississippi majority opinion. Ramos versus Louisiana concurrences are the ones that I look back on so far and say, you know, I think I made a contribution with those cases. And I think I did a reasonably decent job. In those cases, the concurrence and NCAA versus Alston, I thought it was important to say because I was concerned. But it's probably another question, why do you write concurrences? I always ask myself the same question. Is this really worth it? And I've got a good book of unpublished opinions sitting out there that I've

never thought that I've thrown away as not being worth it. That one I thought was worth it because I thought there was a risk that you could read the majority opinion and think, well, everything else is hunky dory. And I did not think that in terms of the restrictions on student athletes. And I thought that needed to be said. And I thought it needed to be said clearly and directly and succinctly. And I spent a lot. It's five pages, but put a lot of time into the exactly how to phrase the things that are there. And I just thought, you know, when a group of organizations is coming together and making a lot of money and agreeing to suppress the money that goes to the people who are the actual athletes generating all the money, many of whom are from low income families, many of whom

are African-American, that there's something really quite wrong with that picture, both legally and otherwise. And I thought it was important to say that in the NCAA case. David, there's so much in that answer. His favorite cases, why he writes concurrences, his thought process. I mean, this is good stuff. It's meaty. Oh, I know. I love it. I love it. And his opinion in NCAA versus Alston was just fantastic. And I do think it really actually made a difference beyond that case. So that case was about education related benefits. The name image likeness stuff, though, flowed afterwards where the NCAA lifts its regulations and restrictions on name image likeness. if Kavanaugh writes a concurrent say that is, well, this is only about education-related benefits and really sort of squelches this idea and tries to demonstrate that the case is very narrow, I don't think you see some of the changes that we've seen. And look, I know that name,

image, likeness, and a lot of people are in their feelings about all of this, And look, I know that name, image, likeness, and a lot of people are in their feelings about all of this, especially in college football. We're in a transition period where we're still trying to figure out what this all means. And there are young athletes who are going, hey, look, unless I get 1.5 million in NIL, I'm not coming to your college. Wait, it was 800,000 plus his girlfriend needed to get into Alabama law school. That was one we're saving. It was like, pass. Yeah girlfriend needed to get into Alabama law school. That was when we're saving was like pass. Yeah.

Bye. See you later. You know, so that that reminds me of the old new way to get to Alabama law school. Y'all. Yeah. That reminds me of the old phrase we use in mediations with opposing counsel when they were demanding. We were going to give them something, but they were demanding too much.

We'd say, you know, Jim, pigs get fat and hogs get slaughtered. So true. Yeah. So we're in a we're in a state of flux on NIL and it'll it'll settle down. We'll you know, it'll be figured out. But I don't think we get to the level of the free market that we have without that kind of really stirring sentiment expressed and legally sound. Interesting pushback from Josh Blackman, friend of the pod. He says, Kavanaugh did not simply express concerns about Gorsuch's opinion, how Gorsuch's opinion could be read to support the other rules. Rather, Kavanaugh reached out to decide the legality of these other rules.

These rules were not presented in this case. I see nothing restrained or minimalist about this approach. Why did Kavanaugh think it was, quote, worth it to decide questions that were not presented in Alston? Because he almost always does. His separate writings routinely decide questions not presented, most recently in Dobbs and Bruin. These concurrences, in my view, were not, quote, worth it. So a little crankiness there. Josh Blackman, well-known conservative professor.

But nevertheless, David, I think I'm with you. I would feel different if it was a majority opinion reaching stuff that wasn't decided. But the whole point is it's a concurrence. No one joined it. It has no force. I think that his concurrences have been incredibly helpful. I thought the Dobbs one was very, very helpful. Important. Very important. I think the Bruin one was important. I'm forgetting what he said in the Bruin one. That's the gun case. But this was essentially. Oh, this was like the stadiums.

It was actually very similar to Dobbs. Yeah. We're talking about what you can't do here. Yeah. Like, let me talk about what you can. Yeah. Slow your roll on thinking that this means we're going to let guns be anywhere, everywhere all the time. And by the way, speaking of Bruin, we need to set aside a podcast because I don't think the history and tradition test is working out. Dot, dot, dot.

All right. We'll put a pin in that there. I said I said Bruin, right? Not Dobbs. Yeah, Bruin. Yeah, right. That's New York State for listeners who are not immediately bringing up case names in your mind. This is the case involving the right to bear arms and which I completely agreed with the outcome of the case that the right to keep and bear arms includes a right subject to reasonable regulation to bear arms outside the home. What was really the most interesting part of Bruin was the test. And we talked about this at length. Is there going to be strict scrutiny? Is there going to be intermediate scrutiny? Is there going to be a history and tradition test where you're looking at the actual history

of legislation and regulation in that sphere? And courts have been dealing with the history and tradition test since. And I've got there's some Chesterton's fence, Sarah, about levels of scrutiny that I think we're beginning to see the wisdom. Well, I don't know if I agree with you on all that, but I'm a big fan of Chesterton's fence. OK, so we'll pick up on the fence next week. Yeah, that sounds great.