The Immunity Episode

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we've got a very immune podcast for you today. Sovereign immunity, absolute immunity, qualified immunity. We're going to talk about them all, as well as what exactly would it mean for Gorsuch and Kavanaugh to look consistent over different administrations? Plus, I mean, we got to talk about the State of the Union, what actually happened, which is not much. And at the end, we're going to bring you the questions from our Florida State University podcast from earlier this week. And thanks again to the First Amendment Clinic at FSU for having us. So let's dive on in. All right, David, let's start with the State of the Union, the longest State of the Union in American history. Obviously, we discussed sort of our own feelings about whether the justices should show up, whether there should be a televised State of the Union. But in the end, David, it was the most predictable thing imaginable. We had the same four justices come this year that came last year. The chief, Justice Kagan, Justice Kavanaugh, and Justice Barrett, and they sat in seniority order. And a few things to note here. One, those other justices just haven't been coming to things. So no surprise there. But two, this is actually a version of the 333 court, which I know will shock people because four is not three. Well, we need to fact check that one. But hear me out, David. Okay. The point of the 333 court is that the court actually divides into these clumps of three more often and blah, blah, blah. But really, it's the two axes, right? It's this idea that there's an ideological axis that absolutely affects the outcome of cases, but that there's also this Y axis that we've called the institutionalist axis. Call it whatever you want. those who show up to the State of the Union are institutionalists. And lo and behold, the four justices are the most institutionalist justices on the court. Gorsuch, obviously, the least institutionalist justice, probably. Jackson, nipping at his heels for least institutionalist, or maybe it's a race for who's the least institutionalist between those. Alito, Thomas, Sotomayor, definitely below the 50% line on institutionalism. Now, as Justice Barrett has said, like every justice is an institutionalist to some extent, but I'm talking comparatively and comparatively they're like they almost sat in order of institutionalism. The chief, Kagan, Kavanaugh, Barrett. I think that's the order I'd put them in. Yeah, it's it's interesting that it was those four. I agree with your analysis. And also I'll say it was less it ended up being less confrontational than I feared it would be. So I think that that's a good thing that amongst all the confrontations and all of everything, they were largely spared. What was some of the language? Disappointing, disturbing, something along those lines. Unfortunate. Unfortunate. By Trump's standards, that's like diplomacy. Yeah, I found it was interesting, those four. I agree with your analysis. And look, I don't like this. We've talked about how it's a legacy of Woodrow Wilson. And by the way, just I was telling a friend that I just give Jonah all the credit for turning my mind properly about Woodrow Wilson. I knew about Wilson from, you know, the popular histories of him, which are, you know, Mr. Make the World Safe for Democracy, you know, all of that. And had not really dived into the real the dark history of Woodrow Wilson until I started listening to Jonah Lowe these many years ago. and now I'm just fully aware of who Woodrow Wilson was. And this is just another count in the indictment. All right. Well, let's move to what the Supreme Court has actually been doing this week. They released opinions on Tuesday morning and boy, were they boring. One on federal jurisdiction that David, we're not even, we're not going to do anything about that really. It was unanimous. Sotomayor wrote it. The end. The other case is mildly interesting. Yes. And we talked about it after the oral argument. A woman who owns an apartment complex claims that the U.S. Postal Service stopped delivering her mail two years ago because she is black, that it was racially charged. And for two years, they intentionally refused to deliver her mail. And the question for the court was, has Congress waived the postal services immunity from suit if it intentionally didn't deliver the mail versus like, you know, your letter fell out when the door opened and like they never found it again? And, David, this was actually a really interesting lineup because it was 5-4 along ideological lines with Gorsuch once again in the foursome. So Gorsuch, Sotomayor, Kagan, and Jackson saying that, yes, you should be able to hold the post office accountable for that. And then the conservative non-libertarian justices, the chief Alito Thomas Kavanaugh Barrett, saying, no, that Congress in this statute did not waive sovereign immunity clearly, and therefore you can't sue the post office. What's interesting about it, David, again, it's not particularly the case, but I know you feel strongly about the word immunity, any type of it, absolute, qualified, sovereign. Do not like all the immunities. But for this to fall so sharply along those ideological lines where this could have been a tribal case, a criminal justice case, like that's where we see this lineup the most often. And here it's an immunity case. So what say you, David? Yeah, it's interesting to me on two counts. So first, before we continue, what is the past tense of the verb form of festivus? A grammar question. So Gorsuch festivist, festivized, I don't know, we'll go with festivized. I think that that's probably the most clear. Okay. So one point, and then I'll get to substance. So back when we were talking at Florida State, we got a question about the civility and the court. And we got a question about the justices and civility and how they work together. And this reminds me of the Gorsuch definition of civility when I interviewed him a couple of years ago. And that was that, look, do we have the necessary relationship to do our jobs together? That's the most important thing. Not whether we're going to the movies, not whether we're going to see Avengers, et cetera. And he joined with the three liberal justices right as he was festivizing them and another opinion. And this is sort of like goes right along with that Gorsuch sense that what's really important here is do we do our jobs, not sort of the lineup of personal relationships. So he just joined with the three liberal judges that justices that he absolutely festivized the heck out of in the tariff decision. And, you know, it's interesting. I read the case. So here's the basic issue, Sarah. So you have a claim of intentional, as you said, intentional misdelivery. You bring a claim under the Federal Tort Claims Act, but the Federal Tort Claims Act says that there is immunity or you cannot successfully prosecute a suit that involves the loss, miscarriage, or negligent transmission of the mail. And so, loss and miscarriage, do the words loss and miscarriage encompass intentional failure to deliver? And another thing that's interesting about this case is it actually sort of connects with the tariff case in an interesting way, which is how much are we influenced by sort of canons of construction? You know, like a clear statement rule is a canon of construction. And if you, so once you have that sort of canon of construction, I'm looking for the clear statement. That's how you steer your eyeballs. What's the clear language? Here, you had one that Sotomayor was relying on in the dissent along with Gorsuch. And essentially, what she's relying on is a series of precedents that say, okay, the core job of the FTCA, the actual purpose of the FTCA is that it exists to waive sovereign immunities. So therefore, you're going to be construing this, construing exceptions in a narrow way. And so that's sort of the canon of construction. So if we're reading loss, if we're leading miscarriage, we're reading that in a way that is plaintiff favorable would be the Sotomayor dissent. So that seems to be, whereas Thomas is really diving into can loss and miscarriage just on their own, let's look at the towards loss and miscarriage, do they encompass intentional actions? Sotomayor is saying, okay, we're reading loss and miscarriage against the backdrop of this, the admonition to not read exceptions broadly, such as, quote, unduly generous interpretations run the risk of defeating the central purpose of the statute, to waive the government's immunity from suit in sweeping being language. That's the central purpose. You don't want a generous interpretation of the exceptions. And so that really seems to be just drilling down to the key difference is that how do we, how much generosity do we give these definitions? And it seems that Thomas gave loss and miscarriage a pretty generous definition and the liberal three and Gorsuch did not. David, here's my question, thought, feeling. I talked about the y-axis versus the x-axis, and I guess I'm a bit confused of where immunities, the sovereign, the absolute, and the qualified, really fit. Are they an x-axis question or a y-axis question? And I'll tell you why. Because, for instance, we've talked, for instance, about how the liberal versus conservative view of the administrative state, the value of experts deciding questions versus Congress falls along the X axis and the partisan axis. And so when they're deciding a case like that, it's easy to say they're like ruling for Trump. But in fact, it's always existed on like the conservative to liberal X axis. Immunities is a little bit weird to me because on the one hand, if you love the administrative state, I would think that you would want more sovereign immunity for administrative state actions, right? Protect those experts from these picayune lawsuits all over the place. But that's not what we see. And instead, we see conservatives as the ones that tend to like immunity for government officials and liberals as the ones that don't. And I'm not really sure why that is from a philosophical principle, David. It's very interesting. It's very interesting. And I think some of this is actually still legacy from 40, 50-year-old definitions of judicial liberalism and conservatism. So if you go back decades ago, well before originalism sort of won the day, what you would say about conservative jurisprudence in many ways is that it was institutionalist in the sense that it made it difficult. It was more statist. So it created more barriers for, you know, it would tend to side with the government over plaintiffs. It was more corporatist in the sense that it was very in favor of tort reform and did not want liberal tort rules that allowed for excessive damage suits. So if you're going back to the late 80s, early 90s, when I'm just in law school and getting out of law school. This was where a lot of the energy was, to be honest. And you go back to the civil rights era, this is where there was an enormous amount of energy against state immunities and against sort of the idea that the state is always going to be right. And so, you know, if you go back to the late 80s and 90s, it really much more of the energy around suing the government came from the liberal side of the spectrum. That's a really good point. But if you are like a Reagan, the nine scariest words in English language, or I'm the government and I'm here to help, you would think you'd also want to be able to sue the government. It's like suing the government's a way of shrinking the government. Yes. But this is what's interesting. There were lagging indicators. So I think the legal world is perhaps a lagging indicator to changes in the political world. So by the time Ronald Reagan says, I'm from the government here to help, all of the pool of people that he can select as federal judges have come up in the older world, right? They're going to be more statist. They're going to be more corporatist. And I'm just using this language. I'm not using it in the sense of, you know. No, no. It's helpful in this case. Yeah. Yeah, yeah. Corporatist. You're going to be more statist. And so those are all the people that are conservative in the legal movement. Okay. OK, Reagan comes along. All of a sudden, conservatism becomes more libertarian. And so this is when I'm coming up. I'm influenced by Reagan. So by the time I hit my 40s and 50s and would have been eligible to be a federal judge, even though I'm now completely not, because I've learned I'm way too old from somebody on this podcast. But that I so I came up in that that classical liberal, liberal libertarian tradition, which is all of the current judges and justices now. And so there are these leading and trailing edge indicators. And so look for the pool of potential federal judges on the right to be much more statist maybe in 25 years than they are now. So because these are trailing edge indicators of ideological changes. So that's my theory Sarah that the ideological changes tend to have the longest tail or pre ideologies tend to have a long tail in judicial precedent Speaking of consistency interesting note based on what we talked about in the last podcast about Gorsuch and Kavanaugh and who's being consistent and who's not. And we talked about how one way to look at Kavanaugh's overall jurisprudence is that he's far more executive power friendly, And Gorsuch is very, very not executive power friendly. And David, the result of that, in theory, would be that when a Democratic president, for instance, is in the White House, a Justice Kavanaugh, who's pro-executive power, if he were being consistent, we would think he was more liberal. He would be the swing justice, you know, the middle guy in a Democratic administration. But in a Republican administration, again, if he's deferring to executive power, we would think he was moving to the right. And we're very early in Trump's term. But I realized that all of a sudden that's already proving true during the Biden administration. How often were we talking about Justice Kavanaugh as the swing justice, the median justice? That's how you count to five. But almost all of his time on the court so far has been while a Democratic president was in office. And now we have the first major test of presidential power with a Republican in office. And all of a sudden we're like, where did this right winger come from? But again, behind the veil, that's actually how you would expect it to go and vice versa for Gorsuch. Gorsuch would look like a right wing lunatic during a Republican, sorry, during a Democratic administration because he would keep ruling against that president. but during a Republican administration, he would also be ruling against him. So we would think he was actually the squish, the liberal, the median justice. And I say this, David, because if that is actually what we're about to see, then my 3-3-3 thing will hold true, but we're going to switch Kavanaugh for Gorsuch. And Gorsuch won't be with Alito and Thomas anymore. He's going to now be with Barrett and the chief. Anyway, I don't know whether this will be true. Who knows? But wouldn't that be weird? Victoria, are you coming with news? You know, it's funny. As you were outlining it, you know, Kavanaugh as super conservative in a Republican administration, seen a super liberal in a Democratic administration. Literally, I was stampeding ahead to Gorsuch. And I thought, yep, this could, on executive power, on executive power, 333. And then also, again, the anti-bullying jurisprudence. And I think it's not just executive power with Gorsuch. It's power. It's power. He doesn't like when power is inflicted on the little guy. He does not like it when power is inflicted on the underdog, especially in circumstances where the underdog has limited resources and limited ability to navigate the system. versus, you know, for example, the administrative state, his book was a bunch of stories, Sarah. It was like that book for me was catnip. Like I was loving that book because it really encapsulated this sort of libertarian critique against systemic abuse of power that I find so compelling. And what really moved me out of what you might have called old school, older school, pre-Reagan conservatism into much more libertarian conservatism was actually understanding the role of the state in systemic injustice. And it's very interesting if you go back to sort of some of the fights over 2020 and 2021 and the definition of systemic racism, I found a lot of people in the libertarian world were quite receptive to the idea of systemic state racial injustice, but had very different solutions to it, very small L liberal solutions to it compared to sort of the critical theory critiques that would involve often sweeping illiberal changes, every bit as illiberal, if not more in some cases than like a, you know, than like an integralist or Christian nationalist or whatever. And so, you know, the libertarian critique of systemic state injustice has really landed with me over the years. Well, once again, Gorsuch and Kavanaugh are going to be the justices to watch this term and probably next term as well. I can't get over the fact of how similar their childhoods are, like how similar their mothers are at an era when women didn't have these high profile, powerful jobs in DC. There wasn't even a women's bathroom in the Senate yet. And these women were crushing it. And their sons both go to the same high school, clerk for the same justice, the same term, all, you know, the twin study of Gorsuch and Kavanaugh, they end up on the court nominated by the same president together and they just repel each other across the V, you know? Yeah. Yeah. Maybe it's, you know, what could be Sarah, this is reformation era grudges. They're very similar, except I think Gorsuch is, is Episcopalian, right? And, and, uh, Kavanaugh's Catholic. I mean, we're going back to the 17th century now. This is old stuff. Maybe that's what it is. Yeah, I think that's the most plausible. Yeah, clearly. The 5th of November is when they really throw down. Okay. One other note from the Supreme Court, NRA v. Vulo, remember this is the case where the, whatever her title is, the head of insurance for New York sends a letter threatening all the insurance companies that if they continue to do business with the NRA, it'd be a real shame for them to get investigated and for bad things to happen to them. The Supreme Court said this violates the NRA's First Amendment rights and sent it back down. The Second Circuit cited at length Justice Jackson's concurrence in that case to hold that, in fact, nevertheless, because it wasn't clearly established as a constitutional violation when it happened, the insurance commissioner had qualified immunity. And you and I said, that's insane. You don't sit there on a concurrence and hang your whole case, your whole decision on that. And it went back up to the Supreme Court. And what did they do? They said, that's just fine with us because you know what? They may like the First Amendment a lot, but you know what they like even more? Qualified immunity. Qualified immunity. Oh, Sarah, that's the theme of today's podcast, immunities. Here we go. I mean, the thing that's unfortunate about this, and it really does illustrate why qualified immunity is such a difficult, is such an unjust concept, is that there wasn't just already case law in the Second Circuit regarding this distinction between coercion and persuasion, the use of the bully pulpit versus trying to coerce somebody, very different concepts. There had been other case law and around this circling around this issue for a while in the second circuit. So it wasn't as if the idea that coercing somebody with your official position, the idea that coercing somebody with your official position could be unconstitutional was new. Nothing about that was new, right? It was just in the precise circumstance that it arose, you hadn't had a previous case. And here we are again. You know, it reminds me of some of the more greatest hits of absurdities of qualified immunity. Qualified immunity when the dog attacks you when you're on your knees, because our previous case was the dog attacked you when you were laying down and on your knees is different from laying down, like that kind of stuff. I know the Supreme Court is not typically an error correction court. and this would be an error correction cert grant. Okay. Let me give you some good news on this front though. Okay. I need it. You and I differ on our qualified immunity feelings. We both think qualified immunity is broken. That's why the website still exists, has the Supreme Court fixed qualifiedimmunity.com. But we actually don't really agree on why it's broken. You don't like qualified immunity. No. I think the test is broken, right? The idea, you know, I'm actually for some type of qualified immunity, but the test currently is, did you violate the constitution? Was it clearly established at the time, except you don't need to do it in that order. And so they keep skipping question one and going directly to question two. And as long as it wasn't clearly established, we never decide whether it was a constitutional violation. And I think I give this example later on, David, But the tire chalking cases that we talk about are the easiest ones. We have circuit after circuit asking whether tire chalking is a violation of the Fourth Amendment. But they keep just saying, we don't know, but it's not clearly established. So the meter maid has qualified immunity. And I'm like, what are we doing here? And shout out, of course, to Judge Boumette for actually tackling the question. But he didn't get a majority on his panel. Also shout out to also shout out to Judge Altman for our fantastic debate on that very issue on this podcast, which was true last. I really enjoyed that. But here the Supreme Court actually did do the thing that I want them to do in qualified immunity cases. They took the underlying question of whether it was a constitutional violation. So as long as you're doing that, I get that it's frustrating that there's one free pass, but no more. You know, so like they said this was a constitutional violation. You get one free pass. Now, I take your point that like if you can cut the salami too thinly, then everyone always gets a pass. It's not one free pass. And that's pretty annoying. But for instance, in those dog cases, David, I have a footnote in my book that you are going to hate. I mean, you'll like the section on qualified immunity, but the footnote on the dog cases, I kind of bust the myth about the standing up versus laying down. It had a lot more to do with the fact that one of the dogs was trained and one of the dogs was not trained. And it's like super fact based. Like if you read the facts of the cases, it's like, well, yeah, this one's unreasonable. The dude is like trying to surrender. And the other dude is hiding so that they can't see him and is clearly in ongoing danger after they've asked him to surrender over and over again. And then they, a trained dog does exactly what the trained dog is meant to do. So, you know, the dog thing is a nice example and it does highlight something, but I think it might highlight more bad facts make bad law. Right, right. Well, which is always a possibility. Always a possibility. Yeah. No, I think you explained it very well, our difference on qualified immunity. But I just did a further point sort of in one of the reasons why qualified immunity persists, one of the reasons why this isn't fixed. So things like the Bivens Act, which would at least mean bring Section 1983 to applicability to the federal government and while retaining qualified immunity. But it would still leave less immunities than the federal government has now. And you think, why does none of this happen legislatively? because this is, I don't necessarily just have to look to the Supreme Court and beg the Supreme Court to do this. Congress can do this. Congress can fix this problem. And, you know, why does it not do it? Why, for example, if you're looking at, say, Democratic efforts to reform ICE, why are they mainly focused on what seems to be sort of like tactics that are unique to Republican, to ICE when it's under Republican administrations is because there really is sort of a bipartisan commitment to maximal federal power. And one of the reasons for that bipartisan commitment is something we've talked about on this podcast before, which is the constant irrational hope when you win elections that you finally crack the code and all of this belongs to you now. And all this belongs to you now for the indefinite future. And so you just have a real problem getting anyone on a bipartisan basis, because obviously if you're in power, you're still possessed by that irrational hope that I'm in power now. And even those who are out of power, if you have extreme hope that you're going to win in the midterms and you're going to have it all, there's less incentive for you to want to dispense with these immunities. And I saw a really interesting tweet that just absolutely pinged all the libertarian-ish pleasure centers, which was, look, If you believe in government provision of services, if you're talking about the government needs to be providing a lot of services like, say, delivery of the mail, that actually you're going to – immunities are over the long term going to alienate people from your ideology because the privately provided services are all accountable to the public legally for their quality. They can be sued in contract. They can be sued in tort. There's no web of immunities around an insurance company, for example. But what happens if it all vacuums up to the federal government? Well, you know, good luck. Good luck. It's just whatever consideration they want to give you and nothing more. And I don't know, basically all of history, everything tells us that breeds corruption and incompetence. So, you know, for my big government friends, if you want government to work efficiently, you should be against immunities. Yes, you would still have power, but you would also have concrete incentive to exercise that power lawfully and competently. Or you could go Sarah's direction and just have a good faith analysis. I realize, David, the doctrine that the two dog case actually represents. I can't believe I forgot the real doctrine. Other cases presenting different allegations and different records may lead to different conclusions. The two-dog doctrine. The two-dog doctrine. Could we just rename that the two-dog doctrine? I like that. I'm good with that. Yeah, that's good. It makes perfect sense. All right. After this break, we are going to bring you the Q&A from the Florida State University event. And I have to say, I have a new thesis, David, that I'm working on, which is that Donald Trump's attacks on the court. have been great for the Supreme Court. You can find out why in the Q&A. So here the Q from our time at the First Amendment Clinic at Florida State University College of Law They provide pro bono legal representation to individuals and organizations across the country whose rights to free speech, religious freedom, freedom of association and assembly, freedom of the press could be at risk. The clinic defends these fundamental liberties in a wide range of contexts, including public forums, educational institutions, digital platforms, government settings, and private workplaces. Also, they are not funded by the university. They're actually funded by the state. So it was really fun to talk to Professor Denise Harley about this. And also, special shout out, thank you to Chief Justice Muniz for coming to this as well. Florida State Supreme Court Justice, who was on our earlier podcast, our Christmas episode about state Supreme Court. So we had a great time. I think these questions were fun. And as I said, new thesis developing, Donald Trump is great for the institutional credibility building the Supreme Court. Howdy. Thank you again for being here. So I've got a question about the court and the interpersonal reactions right now. So Gorsuch's concurring opinion was very interesting. But even During oral argument, we hear the justices start to kind of go after each other a little bit more these days than we have in the past. I'm curious what your take is on that. Where is this court headed? What kind of interpersonal feuding are we seeing? And is it relevant to the disposition of cases in the law? Boy, you know, I asked Justice Gorsuch that very question, a version of that, when a couple of years ago, I was interviewing when his book came out. And so, most of the interview is, of course, about the book, but then you've got the things, aha, I'm in front of a Supreme Court justice. What are my other lists of questions? And one of them was about this idea about civility and division and relationships and all of this. And I found his answer really interesting. And he was like, what are we talking about when we talk about, what's the important thing to talk about when we talk about civility and division? And he said, for me, for him, his most important factor was, can we work together? It's not, can we go to the movies together? It's, can we work together and do we work together really well? And his point was, we work together very well, that we have constant ability to agree with each other. We have constant ability to be, to have, you know, sort of unique ideological alignments so that the getting the work done, we get the work done. And that was his answer. And he really didn't kind of plunge into who he goes to see Avengers with, if he goes to see Avengers, which I would really love to know. But so I think that that was his answer. And so what I was fishing for was, do we have the Ginsburg-Scalia type relationships on the court? Which, you know, who are the pals? Who do people have closer personal relationships that people might think? And he was not interested in answering that question as he was not interested in any question around like his thoughts or feelings or background or origin story or anything like that at all. But I did find that to be an interesting response. It's also Scalia and Ginsburg were the exception. These are nine people. What Justice Barron has compared it to an arranged marriage. You don't pick them, but you're stuck with them for life. Like that's a whole lot of time that you're going to spend with these eight other people. And at the end of the day, you'd probably rather go see your family than hang out more with the same people you just spent all day with. So I think there's that aspect that Scalia and Ginsburg are unique. I actually take more in the civility of oral arguments than I think other people do. Like the sharpness of the questions or their ideological disagreements aren't civility markers to me. The biggest civility marker is that when a more senior justice is trying to talk, basically, are they all bending over backwards to allow each other to ask the questions? And you hear that happen pretty often where two justices will start talking at the same time and one will say, no, you. And the other one will say, no, you. And they'll go, no, you. And like we actually spend 45 seconds in the oral argument with like who's going through the door first. That, to me, is a pretty overt sign of civility and respect and sort of willing good to the other. And of course, they have the oral arguments. That's what we see publicly. We see the opinions publicly. What we don't see publicly, and the law clerks don't even see, of course, are the conferences where they're actually discussing the opinions. The chief justice goes first. You go around the table in terms of seniority. From all accounts, those have been perfectly civil affairs. And on the days that they have oral argument or conference, they eat lunch together and are not allowed to talk about work. and it's funny to like I've asked you know what are you what are these justices bringing to lunch and it ranges from like a yogurt to a full meal from the cafeteria and they talk about the things that you would talk about with your co-workers if you were forced to have lunch with them every day and not talk about work what are you binge watching um you know one of the things that's in my book is that Justice Barrett mentioned that she watches Slow Horses. And then I heard that in fact, it was Justice Kagan who had read Slow Horses and first recommended Slow Horses. So I think in those type moments, we're getting insight into what they talk about at those lunches. And if you're sitting there talking about Slow Horses with someone, I just... You don't hate them. You don't hate them, right? If you're sharing Slow Horses, that is the definition of willing to good for the other. because that's a great show. I have a comment and a question. I want to ask you guys about student speech. One of the cases we're working on in the First Amendment Clinic, actually Morgan's working on, is a student speech case where a high school shut down a newly forming extracurricular club because they said the flyer was too political. It had an image of a Supreme Court steps rally with signs that said defund Planned Parenthood. And the school isn't making a tinker argument that it was disruptive, but making basically a government speech argument saying it would have the imprimatur of the school, if we have this flyer on the wall, it's very political, the school is not endorsing that message and does not want to be appearing to endorse this message. And so one of the arguments we're kicking around is trying to make almost like by analogy to Lemon being expressly abandoned, saying we shouldn't be relying on like a third party perception or misperception of who the speech should be attributed to. Curious what you think about the school's argument on that. I mean, my first thought would be context matters. I mean, if you're talking about a situation in which a ordinary reasonable observer would say, this is the school talking, and then maybe they have a point, but that's a strain. That's a strain because if you're talking about an advertisement on its face that explicitly is for a club and not for a school, it feels very difficult to make the argument that a reasonable observer would construe this to be a statement from the school. And so, yeah, that strikes me as a really big stretch. Like I would walk into the court in that circumstance feeling a pretty high degree of confidence. unless, you know, I could imagine some left field factual situations where maybe it was posted on a bulletin board that was exclusively reserved for communication from the school to the students or something like that, that could alter it. But it's very hard to sort of say on its face that a advertisement for a club could be reasonably construed as school speech. Yeah, we'd want to see a policy that says all student club speech is presumed to be the speech of the school and will be approved with seven days advanced approval. And like, you know, you and I discussed this briefly, it doesn't sound like the school had any such policy until this flyer, in which case it just is clearly content based. Now, could a school in theory, David, have a policy? So I think that they're actually making the worst of their arguments of government speech. I think they could make a time, place and manner type argument that school club flyers are limited to the name of the club, the date of the meeting, you know, like sort of specific things, and your club flyer just simply cannot have anything outside of that information. Your club is welcome to do that, but the flyers that will be posted around the school, if you want to post them on these school bulletin boards, are limited to the following factual information. And as long as that's a written policy that is enforced evenly, I think that would probably be okay in a public secondary school. Probably. I think it'd be an analogy, you know, an analogy would be saying college, how in college people began to have real problems with the messages folks were putting on the dorm room doors. And so dorm room doors became a battlefield in colleges, leading to protests, leading to all kinds of things. Justice Jackson talks about this in her book, that she's at Harvard when a student puts a Confederate flag in his freshman window. Right. And a discussion around whether that was appropriate. And the way the colleges resolve that is to basically say, no, nothing on your door, nothing in your window. So they essentially like close the forum entirely. And so what you're talking about is something like closing the forum. But I never heard any of those schools argue that the doors were their speech. Right. Which doesn't make no sense at all. The speaker of the school arguments. I mean, the only way that makes sense to me is if it was posted in a section that said principal's announcement or something like that. Yeah, that's a new one. That's a new one on me. So since the tariff opinion came out, I've been kind of thinking about the chata of it all and specifically the fact that Chief Justice was talking about how you need a veto-proof majority in order to overturn the declaration of an emergency. Do you think that this is the court kind of actually – because it seems like they've sized up this a good bit, at least getting some creeds to the fact that a lot of these things, giving the executive some pretty strong powers, were made with that legislative veto in there that has since been taken away by the court? Yeah, that's such a great question. I mean, the original formulation of a lot of these expansive grants to the executive were they weren't as expansive because they had the legislative legislative veto attached to them. And so if you remove the legislative veto, then the grant to the presidency gets that much bigger and uncheckable as, you know, it's Gorsuch raised an oral argument. And so, you know, one of the interesting questions is, do we need a constitutional amendment for a legislative veto if we're going to have an administrative state? And it's very difficult to imagine a nation of this size and complexity and an economy of this size and complexity without some version of an administrative state. And so, you know, this is one of the very interesting question. Do we need a constitutional amendment? Because that would be the way to deal with this. If you just have, you know, another majority that reverses INS v. Chata, that's not permanent. You know, if you're basing a system around a court precedent, court precedents aren't permanent. And so it's much more permanent to amend the Constitution. I think, you know, if and when we ever get out of this close polarization that we're in right now, it feels silly to talk about constitutional amendments when it's a 51-49 or 50-50 country. When we get out of this, if and when we get out of this, we're going to need to have a conversation about lessons learned. And some of those lessons might mean some constitutional amendments. I'm a big fan of an amendment around the pardon power. I'm a big fan of amendments in some of their areas. Sarah, you've got a whole songbook about amendments. I, in fact, have a whole thing in my book of proposed amendments by Sarah, which I'm sure will be ratified. Post case. The second the book comes out, that will just get sent right to the states. My follow up question for you on that is the filibuster. So I think the I think Chata was correctly decided. And that's a problem. To your point, we could amend the Constitution. And maybe that would put pressure on Congress if they had a legislative veto that everyone would keep, you know, basically the ping pong would keep going across the net. Like, oh, the president did this. Now will Congress actually veto it? Well, the president, you know, like that could be good for Congress. But let's talk about something else that is obviously preventing legislation from happening, which is the legislative filibuster. And whether, you know, if we want Congress to do its job, why aren't we all gung ho on limiting that to a 50, 51 vote majority? Yeah, that's a really good question. I mean, we are having this is the first time that I can remember that we're seeing serious Republican pressure to try to get rid of the filibuster coming from the executive branch. You know, for a long time, Republicans have sort of circled the wagon around the filibuster and sufficient number of Democrats as well to try to prevent it being from being altered. But, you know, I do think it is time for a conversation, but to me, a flat-out elimination of the filibuster, I do not like that. This idea that very bare majorities in a nation as closely divided as us can implement massive sweeping change, I think would introduce an additional element of instability, would actually, sadly enough, raise the stakes of our elections, even beyond the absurd stakes that they have now. But the absolute ability to totally block legislation against the will of Democratic majorities indefinitely is also a problem. And so I'd love a solution that we had a group of, was it three L's at Harvard that wrote to us? The two Toms. The two Toms. I can't remember Tom's last name. Koenig and I'm sorry, Other Tom. I'm currently. Oh, yes. Tom Koenig and... Other Tom. Yeah, Other Tom. Tom and Other Tom. And they had an interesting idea that I really liked, which was you can filibuster in one legislative session successfully, but if you can bring it up in the next legislative session after another set of elections where one third of the Senate is elected, then it's majority. And so I thought, huh, that's pretty compelling. If you can muster a majority sentiment for the same legislation for two consecutive terms, that's two consecutive sort of legislative sessions that that should be enough to overcome a filibuster. And it puts it on voters. It can absolutely be a vote, you know, instead of our congressional elections being referendum on the two parties, it could actually be about a piece of legislation. It would put a lot more focus on Congress's role as legislator, Tom Harvey, Tom Harvey, Tom Koenig Yes Sorry Toms So double Toms thank you once again for your interesting idea A philosophical question though is like this chicken and egg Did more agency action kill the incentives for legislation because Congress just knew that the agencies would do it all themselves? Or did the difficulty of getting legislation through the filibuster as partisanship increased lead to more agency action because we weren't getting answers from Congress. I think the answer to that has to be a little bit of both. I don't think it's purely one or the other, but I do think there probably is a better answer. It's more one than the other. And I go back and forth, actually. I mean, you go back to my original example of sort of the moment that I think the car really took off. It's not to say there aren't examples before this. There are, but there's this exponential moment when immigration dies in Congress and President Obama gives his pen and phone speech and signs the DACA executive order. And that's an example of kind of both working together. But for the filibuster, they would have passed the immigration legislation. But also, if Congress knew that the president didn't have the authority through executive action to do these things, would they have felt more pressure to overcome the filibuster? Yeah. Like he took all the pressure off them by saying, don't worry, I'll do it myself. And so you really see both happening at once. And Congress never does anything again, really after that point, any meaningful sense. But you know, there is a lot of precedent for essentially saying, okay, in theory, we have this principle. And then in practice, this principle is not working out at all. And so then we need to make a change. So for example, just if you look at the American constitutional structure, there was a lot of assumption that the principal threat to liberty was going to come from a federal government and not from states. The federal government was the principal threat to liberty. Well, for much of American history, it was 180 degrees from the truth. It was the states that were imposing slavery. It was the states that were imposing Jim Crow. And so there needed to be change because the theory of the case was proving to be wrong, that the states were worse for liberty. So then you have a 14th Amendment that applies ultimately over time, came to apply 99.9% of the Bill of Rights to the states. And then you have this, now you had a consensus, well, the states are more of a threat to liberty. The federal government's the instrument of liberty. And now some of that's swapping around that the states might be more proficient at protecting liberty than the federal government as we put more and more power and authority in the federal government. So we often have to change legal doctrines when theoretical principles no longer hold because the theoretical principle for the filibuster was not to give minorities absolute veto of power. It was to introduce deliberation and compromise, not to freeze the process. And so if it is acting as a total freeze, what are the solutions that can reinforce the need for deliberation and compromise, but still not create the absolute freeze. So it's a really interesting question. I have two questions that are totally unrelated. The first is to your filibuster point. Don't we have a filibuster only because Aaron Burr happened to take out cloture when he amended the Senate's rules? That's the first question. and then homage to Sarah in my second bucket, is a question about the chief justice's opinion. I loved the email that you all read from your fan about the major questions doctrine being perhaps inconsistent with clear statutory language. So do you think the chief really needed both parts of that opinion. I was very confused why he didn't just stick with a clear statutory language, have a six justice majority and call it a day. I mean, this is an interesting point. The chief also believes that the language is clear on its own. He could have said, yes, we needed major questions doctrine in these cases dealing with, you know, during the Biden era, I guess. But here, you don't even reach major questions doctrine because you don't even have ambiguity enough in the language. We can just say, you don't got it and move on. Why invoke major questions doctrine at all? I think some of this goes to the chief. The chief has institutional consistency desires. He wants to apply the exact same thing from student loans from Biden to this for Trump, as long as the shoe fits. I mean, he's not going to force some institutionalism where it's not appropriate, but the cases are incredibly similar. Waive or modify, regulate importation. I don't know. They kind of feel the same to me. And so if you're saying that one invokes major questions doctrine, and the other one does, it does build that institutional credibility that I think the chief cares a great deal about. Whereas, you know, sort of bending over backwards to explain why we only apply major questions doctrine during a Democratic administration, that a Democrat needs a clear statement from Congress, but a Republican president doesn't, even though you're ruling against him, I think has institutional concerns more than just legal concerns. And that's very chiefy. Also, probably he got a lot of, you know, emails from Gorsuch and Barrett that were like, this is a major questions doctrine case. Though, as now everyone's noticing, nobody actually agrees on what the major questions doctrine is. Literally nobody on the court. I don't think there's even two votes for what the major questions doctrine is at this point. I'm not clear that the chief and Gorsuch actually agree. Only because Gorsuch didn't go after the chief doesn't mean that they actually are completely eye to eye. Yeah. You know, and I'll go from, I'll leave that question to Sarah and I'll go to Aaron Burr, because there's few better ways to throw shade on a doctrine than by attributing it to Aaron Burr. That's very, very well done. I will say, though, that it has been sort of reaffirmed and re-ratified by a practice and new votes and new arguments and new debates on it. And it's been altered and amended over the course of many, many years to the point where sort of Aaron Burr is the father of this doctrine. It's been really attenuated. And I think that I'm kind of of the view that over time, if this polarization continues the way it's continuing, I don't think the filibuster will survive. I think we will reach a point where a majority of the Senate, because remember, it's only a majority of the Senate that needs to change the Senate rules. So the filibuster survives by consent of a bare majority of the Senate. And so I do think that if there is a continued close polarization, if there's continued gridlock, we are continuing to be in a situation where basically the way our system works is a president promulgates executive orders and regulations, and then they're sued about it, and then the Supreme Court decides it. But that's just not the way the system was intended to operate. And so I do think there's going to be until we can sort of unstick ourselves from a compromise basis, there's going to be building pressure to unstick the process through getting rid of the filibuster. Boy, that's a real be careful what you wish for. This whole time of our podcast, we've been saying Congress do your job. You get rid of the filibuster and all of a sudden Congress is passing a lot of very partisan, you know, 51 mayor majority legislation. The next Congress, it flips. They're repealing that. They're passing new, very partisan, 51 mayor majority legislation. Congress is doing its job, David, and we're going to still be pretty displeased with the job they're doing. And I'll go one step further and predict that the Supreme Court will serve a sort of Burkean conservative break on quickness at that point and just the speed problem. And we'll find new doctrines to do that. Right. Because that's sort of the Supreme Court's job in a way, again, being countermajoritarian, preventing very, very fast change to the country. We just don't have like a that's not in our Constitution. It just seems like the natural consequence of having a non-politically accountable branch that's a lagging indicator from electoral changes. So if you suddenly have Congress responding very quickly to electoral changes back and forth and back and forth, the courts won't actually reflect that very well. Yeah, no, it's it's going to be very interesting because as Yuval Levin says better than almost anybody, this was a system that was not designed to be changed quickly. It was designed with a very large, diverse, continent-sized, I mean, not continent-sized as of yet in the early American period, but still immense. This is an immense country, even from the beginning. I mean, if you're talking about the challenge of the British had to pacify the 13 colonies, which the land area dwarfed the land area of Great Britain, that's hard to do. And so there was a design from the beginning that we work this thing through a step-by-step process that is almost always going to require some degree of compromise. So it's going to be hard to escape that because that's just the system designed from the inception. If the Supreme Court makes a decision and a president just decides to outright defy it, is the only constitutional correction impeachment and conviction? and what happens if the legislative branch decides not to take that action? I got bad news for you, my friend. The remedy is impeachment and conviction. Because if you're willing to go far enough to just outright defy the court, even contempt, contempt to enforce contempt requires officers of the executive branch to actually seize somebody, put them in prison, et cetera. so I asked you know just to be sure that I wasn't missing anything or about a year ago I interviewed Judge Jeffrey Sutton from the Sixth Circuit for a podcast for the Times I don't think you told me that he's my number one judicial crush and you spent time with him without me I did I did and yeah no I told you about it and you said that exact same thing and it was so painful that you blocked it from your memory. So I've just resurfaced a traumatic memory. And he said, we don't have an army. We don't have a police force. It's voluntary compliance. Now, it's not, I mean, you can impose penalties. And, you know, there was a civil contempt finding recently against a JAG officer who'd been detailed to the U.S. Attorney's Office in Minnesota, to $500 a day, civil contempt. That's a consequence, but the enforcement of that, like actually extracting the dollars from his account is going to require a touch with the executive branch. So, the bottom line is it really is voluntary compliance with impeachment and conviction is the... But I will also say this, the Supreme Court knows this and it knows that its opinions will matter even if there isn't immediate enforcement. So one of the examples of this is Brown v. Board, 1954. So the Supreme Court decides Brown v. Board in 1954, and there is no immediate enforcement of that opinion at all. Not at all. So they go back and revisit with Brown too, and they essentially say, with all deliberate speed, because there's just massive, you know, this was part of the phrase, massive resistance. But even though Brown was defied for a decade or more and more beyond that. I mean, you know, the last school wasn't fully desegregated in the United States until system, until this century, which is mind-blowing, okay? But the Supreme Court, but do we want a world with Brown or without Brown? We want a world with Brown because even though there was immediate defiance in that period of time, it stands right now as a pillar of our constitutional system. And so, from that standpoint, I would say even if there would be defiance. We want the opinion anyway. We want the opinion anyway. Thankfully, there was immediate compliance with this opinion. There was a guidance sent out from the Trump administration in compliance with this opinion. Now, of course, he replaced it immediately with what I think, as we discussed, are other illegal tariffs. But so far, at the Supreme Court level, he has complied. So, but yes, you're exactly right. The enforcement mechanisms, Madison was very confident in them without proper justification. Let me read you this quote from Robert Jackson, who's, you know, famed attorney general, prosecutor at Nuremberg Supreme Court Justice. So in 1941, he wrote this. In spite of its apparently vulnerable position, this court has repeatedly overruled and thwarted both the Congress and the executive. It has been an angry collision with the most dynamic and popular presidents in our history. Jefferson retaliated with impeachment. Jackson denied its authority. Lincoln disobeyed a writ of the chief justice. Theodore Roosevelt, after his presidency, proposed recall of judicial decisions. Wilson tried to liberalize its membership. and Franklin D. Roosevelt proposed to, quote, reorganize. It is surprising that it should not only survive, but with no might except the force of moral judgment should attain actual supremacy as a source of constitutional dogma. I quote that because to some extent Jackson's point is the efforts at presidential defiance have in many ways made the court stronger. and I think we're seeing that actually right now as well that the moral force of its judgments makes the institution a separate branch of government when it defies the political will of the other branches when it's in line with it it doesn't have a purpose which is fine too it doesn't always need to have its own purpose but its purpose comes from when it is counter majoritarian and counter to the other branches that's what's made it strong so you know you can kind of turn the arguments about Trump hurting the legitimacy of the court on its head, Trump might be making the court far more strong because of the threats he makes against the court over time. All right. Thank you, guys. Thank you.