Who’s the Loneliest Supreme Court Justice?

>> Ready I was born ready. >> Welcome to advisory opinions. I'm Sarah Isger. That's David French. We've got lots of little orders coming out of the Supreme Court another statement on the denial of cert by Justice's Sotomayor in Gorsuch that's going to set our libertarian friends jumping out of second floor windows. A CNN piece on Justice Katanjee Brown-Jackson and a conversation about who the most influential liberal justice on the court is today to unbox decisions from the third circuit on second amendment rights. And then a whole conversation at the end, including, was Senator Alyssa Slach in right about bringing prosecutions against corruption in the Trump administration to deter young people from joining the Trump administration. All this and more, David, on advisory opinions, and I have to tell you in the last week, I have gotten so many people coming up to me and talking to me about the ceiling episode. >> Is that right? >> Controversial. A lot really like it. >> Okay, good. >> But some of the non-lawyers were like, what are we doing here? Why? What is happening? Also, I realized that feeling is a homonym with the thing at the top of a room. And it often sounded like we were saying seely. Maybe just wasn't a good oral experience in a lot of ways. But you know what? If you're a nerd for advisory opinions, then you've got to be a nerd for all of advisory opinions. No apologies for the ceiling episode. >> That's right. This isn't a buffet. This is your hand at a plate and you have to clean your plate. >> All right, let's go. David, before we dive in into perhaps more substantive discussions, we got another statement on the denial of cert by Sotomayor joined by Justice Gorsuch. It's a little budding, you know, Justice Romance going on here. >> I'm sure that's exactly how they would describe it. >> I think so too. David, this one's a doozy. And for our libertarians out there, you know how like you give a trigger warning? Let me give our libertarians a trigger warning. You may just want to skip ahead a few minutes and not listen to the facts of this case. It's going to upset you. >> Yeah. I mean, I've long described -- I mean, I'm a civil libertarian who, in other ways, is libertarian-ish. And this thing, yeah, trigger warning appropriate. >> Okay. So if you get two parking tickets in the city of Chicago and you don't pay them for a year, they send you a notice. And you have 21 days to pay after that notice in the mail. And then any of your cars, not the cars that got tickets, any of your vehicles that are registered under your name can be forfeited. And you have 24 hours to go get your car. And if you don't, they sell it. Like it's gone. They have made by one estimate, the city of Chicago 264 million dollars in traffic ticket revenue, which includes this car forfeiture fun times. So David, this guy did exactly what I just said. He got two tickets, actually, he didn't get the tickets, but the co-owner of a vehicle that he had got two tickets, the other owner, I guess got the tickets, didn't pay it. And they took his car as in not the car that got the tickets and not the car with the co-owner. They took his car and they sold it for scrap for 500. Sorry, no. How much did they sell it for? It was like 267. I mean, yeah, a really small amount of money. Sold it. I've never even heard of that before. I mean, I know it happens and don't write in and tell me this is super common. I know, but sold for scrap for that. Something about sold for scrap just makes it even more terrible and pitiful and bad. It does a little bit. So that's a bit of a bummer for him and they didn't give him any money back. Not that he actually owed more in tickets than the $200 that they sold it in scrap. But even if they hadn't, the city's policy is that this is part of their police power. They don't owe you anything. So, so do my orange gorsuch or like say the what now? We've decided two forfeiture cases in the last few terms. In one, you have to give the excess money back and in the second one, the most recent one, it has to be, you know, a fair process and et cetera, et cetera. And they're like, this is not a police power because you're not taking the ticket. Sorry, you're not taking the car that had the infraction. That would be the police power. You're taking any car that owns to that person to pay the back ticket revenue, which is a tax, which is therefore a taking, which therefore triggers the Fifth Amendment. But David, they didn't grant cert on it. Once again, this is a statement on the denial. And I'll just read you from the end here. Where as here, a person alleges a classic taking in which the government directly appropriates private property for its own use or to pay an outstanding debt like a tax lien, the talismanic invocation of the state's quote law enforcement authority may be insufficient to avoid the requirement of just compensation. I again encourage courts considering this issue to take care that do deference to state police powers does not eclipse constitutional rights. WAP WAP. Yeah, it's actually a very, very, very interesting underlying issue, which is at what point does the state's police power the ability to impose a penalty for a wrong done? In other words, a civil penalty or a criminal penalty, criminal civil for forfeitures, an example of that. When does that become a taking? Can it become a taking as opposed to just a form of criminal or civil penalty? And because the classic taking situation is you're just mining your own business. And let's say the army needs a new base. And you haven't done anything wrong at all. You're just sitting there watching the grizzlies on TV and somebody comes in and says that you've got the government wants is going to buy this property. That's the classic taking. In other words, at that point, they have a right to take it for public for this public purpose. Then the real question is what is just compensation? It's a little bit different in the sense that you've actually done something to merit some form of government penalty. So when is that government penalty? Just whatever the penalty is versus actually veering into an unjustified taking of your property. So it's not, it's not the, I think the libertarian part of this is just that you break out and high it's at the notion that they can take your vehicle and not even the vehicle that got the ticket. They can take a vehicle if you don't pay your parking tickets. Part of that is that just strikes you as extraordinarily excessive. But excessive is not the same thing as clearly as a ticket. By the way, this is also an interesting cautionary tale on cert petitions because just as so to my or rights, why this is a statement on denial of cert instead of a dissent from the denial of cert. One, she just says like let's let this continue to percolate. We need a circuit split. That is what it is and it sucks to be the first one because you don't get anything out of that. You basically just lose even if the third guy gets the windfall because you crack open the door, he gets to kick it down. That's just a bummer of how the Supreme Court works. But two, they said petitioners moreover have lodged a facial challenge to Chicago's ordinance which might require this court to invalidate even those features of the law that have nothing to do with vehicle forfeiture. Facial challenges really disliked at the Supreme Court. Stop doing them. You're doing your client a huge disservice. And David, this is the part that I don't like, but appears to be a real fact of life. When you are doing a cert petition at the Supreme Court, you now basically have to have someone who speaks scotis. And so that's a bummer, right? This idea that like you can take your case all the way of the Supreme Court is getting less and less true. And this is just another example. Though again, without the circuits, but I don't know that they were going to get this granted anyway. But the fact that she included that line is a little bit cringy for me. Yeah, no, I get that. I absolutely get that. And it is interesting to approach to facial challenges because when I look back on my own practice, I'm now realizing I think I was practicing in the golden age of facial challenges because my goodness did I file them. I mean, to tell you, your speech code case was a facial challenge. I mean, every now and then you would have an as applied, but that would be related to say to a particular provision of the speech code, the facial challenge. are often looking at it much more holistically. And I never had a problem, Sarah, I never had a problem. So maybe if I would back to the practice a lot in a few years, it would be a bit different. A couple of other things that we got Wednesday morning, the Supreme Court left in place an order by a federal judge in Washington, DC that prohibits the federal bureau of prisons from enforcing a new policy on health care for transgender inmates that would prevent such inmates from obtaining, among other things, hormone therapy, and social accommodations such as makeup wigs and padding. In a brief, unsight order, the court just turned down BOP's request to pause that decision. David, you do wonder over the course of the court's interim docket forays. They have a hard job, right? That the whole point of this podcast in a lot of ways is that we try to grant good faith to everyone involved in all of these things. They've created a bit of a mess for themselves, though, right? Like the more you take emergency docket things, the more emergency docket things seem to come. I mean, there's like an adoption case at the Supreme Court, like everyone's like, oh, well, if you're open for business, I have some, some things I'd like to change too. Yeah. I do wonder as I'm seeing these, you know, like something like this, whether perhaps we're going to, we've, we've already seen the peak of the interim docket. This, by the way, had two dissents, justices, Alito and Thomas indicated without explanation that they would have granted the Trump administration's request. Interesting, by the way, this is one of the first times we see Gorsuch and Kavanaugh on the same side rejecting the Trump administration. There has always been one of them, but not often do we get both? So that's fun. But David, I guess I'm not, for some reason this didn't surprise me that they just didn't want to get involved because like, what's the emergency? Yeah, this outcome does not surprise me at all. And also just to your larger point, I think it's really clear that the court's very uncomfortable with the handling of the emergency docket. It's just not quite figured it all out yet. It's not working out the way they want it. Yeah. And so part of me wonders if you're going to have something like, you know, when Star Wars was going to have the new trilogy, there was a sort of hard reboot of the canon. In other words, they wiped away a bunch of the post-return of the Jedi novels and everything. It's like not being part of the canon anymore. And they like did this hard reboot of it. I really have no idea what you're talking about, but I think I get the analogy. You get the point that essentially what they said was, okay, everything that we've done over the last 10 years, forget about that. Here's the news, here's the news story now. And I almost wonder if we're going to drift towards that. If it's going to be like, okay, here's what we're going to do. We're just going to do the hard reboot. Here's here are the new rules. Here's the way we're doing emergency docket stuff going forward because that kind of adhocerie. And it does feel a bit like adhocerie, to be honest, that kind of adhocerie. It feels unsustainable or at least it's just very difficult to make sense of it in real time. Adam Feldman over at Empirical Scotus and he published this at Scotus blog has some really interesting new data on the in-term docket applications. You and I have talked about some of this data because Adam Liptec over at The New York Times had published a piece about it. And the summary of what we talked about was, there's a denominator problem, you know, looking at the Trump administration. There's like these crazy numbers, you know, he's one 87% of the time. And it's like, yeah, yeah, but he just took the loss in the other hundred cases. So if you add in the percentage of times the Trump administration has lost in federal court on their executive orders, it's huge. It's like 80%, but they only appeal the ones of the 130 or so that they think they can win. And so then people only look at the ones that they thought were their winners. But David, there was always a bit of a problem because remember, we also talked about comparing the Trump administration to the Biden administration and there was a distinction. Trump was doing better than Biden on applications they brought to the Supreme Court. Adam Feldman has some really interesting data on this. So when the administration seeks relief, Trump in his first term prevailed in 28 of 36 substantively decided applications or 78% during his second term that figure rises to 27 of 33 or 82%. Now compared to Biden, it was 10 of 15 or 67%. So 78% for Trump, then it goes down to 67% for Biden and then it skyrockets to 82% for Trump. Those numbers aren't crazy different and we are talking about a low set, right? Biden only had 15, so not that many. But here's where it gets really interesting. During the Trump administration, Trump has basically always been on the losing side at the lower courts. So he's the one seeking relief. During the Biden administration, the Biden administration kept winning at the lower courts. That's why there's only 15, but there were lots where they were on the receiving end as in someone else was then applying to the Supreme Court for that emergency relief and the Biden administration was simply responding to that. If you compare then all of it, right, where you are asking or saying, please keep it in place. So the government, the administration is involved in one of these executive order administrative action emergency applications, not just the one seeking relief. So all of them together, well, then the numbers can't really interesting. Okay, so now we have 75% in Trump one, 74% in Biden and 77% in Trump two. That is not a significant difference. Correct. That is no longer statistically significant because the actual numbers are kind of small. So like one case or a half a case, all of a sudden is worth quite a few points in that. So David, the whole like, well, sure on the merits docket, Trump keeps losing, but on this emergency docket, the court keeps giving Trump his way on everything just disappears when you do that. And I, I don't know, I found that pretty relevant. I found that fascinating. I thought the numbers would be more similar than sort of like your casual observer would expect. I did not expect them to be 75, 74 or 77. I did not expect them to be that similar. And the 77 is just one away. Right now, there are 23 out of 30. Biden was 29 out of 39. If it goes 23 out of 31, well, then all of a sudden is below Biden or right, right? Almost exactly at Biden. It's remarkably close. There's no question about it. It's fascinating. And then he, you know, he goes on and he breaks it down by topic area, which gets interesting as well. Yeah. And this is why it's always been apples to oranges, right? They're different topics. They're different theories of the constitution and all of that. And we did talk about that last time. But we will put Adam Feldman's piece from Skoda's blog and the show notes for anyone who wants to dig into more of the math because there's a lot of it. And we are just barely giving you the top line of that one part. David, one other thing from the Supreme Court this week, citing a lack of quorum, that is the minimum number of members required to vote, the justices left in place, a ruling and a copyright dispute between several major music companies and songwriters, four of the justices, so to my or Gorsuch, Barrett and Jackson, recuse themselves from the dispute because it involved Penguin Random House, which published all of their books. Oh, David, I have a thing in my book about how not having a process in place to replace justices when there's a recusal is causing problems. I was talking about the enormous amount of pressure to try to get a justice to recuse because if you can get Justice Barrett off the St. Isador case and then it can tie four four and you won below, you just want a case that you might have otherwise lost getting a lead out to recuse in the Suncore case. Same exact thing. And so everyone wants to throw out like crazy ethics accusations because the reward is so great. But if we had a plan in place where I suggest, for instance, that each justice at the beginning of the term, name who their person would be, they could just pick a circuit judge that term who would like fill in for any case in which they're recused or we can do a hat drawing of any chief judge of a circuit. I don't actually care. I didn't even think about something like this where Penguin Random House is a party to a case and so they all recuse and so they literally, we no longer have a highest court in the land for Penguin Random House. I know. It's pretty unfair to Penguin Random House. It does. I mean, contextually unfair if Penguin Random House is one in the court below then. Oh, yeah, I have no idea. I don't know if Penguin Random House is the good guy or the bad guy or anything, but just the inability to ever get relief at the high court, no matter what, does seem like a bit like something we should maybe solve. I do love the idea of having a replacement justice and the other low hanging fruit would be those retire to ring war justices who are still out there and capable of deciding cases, sort of like senior status, for example, that a retired justice takes senior status meaning they're warming up in the bullpen and so long as they're able to do it out, they calm if somebody recuses. Justice Breyer is still here in cases at the circuit level. He is a spry guy. I was with him on Thursday last week. He is wonderful. And by the way, if you want to hear our conversation, plug for Amarika's constitution, which is going to replay the whole thing, David, if I could just take like a little cul-de-sac here. As best I can tell, like every senior in AP government in Boston got the day off school to come to fannual hall and it was Justice Breyer, Professor Akhil Amar and for some reason me on stage, it was, my imagination was that there'd be a bunch of kids who were just like, this is what I had to do to not go to school today, so like, this is a trade off I'm willing to make, but I don't want to be here and that they'd be on their phones or something. In the room of like, I don't know, hundreds, like 500, 600 students or whatever, I saw one person take out their phone, clearly wrote down something Justice Breyer said that they wanted to read and put their phone away. At one point I trashed Thomas Jefferson as I am want to do. It was like a rock star moment. The kids are whooping and standing and cheering to trash Jefferson. I was like, what is happening? And then afterwards, I was asked for more selfies than I've ever been asked for in my life, David. There's something in the water in Boston that makes high school students this pumped about constitutional history for the James Otis lecture. I don't know, but it was incredible. That is so fascinating. I mean, when I'm encountering sort of your top level AP high school students, I'm overwhelmed in a positive sense by their nerdery. You know, they seem genuinely interested and this goes back to something I've said for a while, which is if I compare myself at that age to a lot of these kids now or myself in college to a lot of the students I teach, honestly, I'm, the comparison is not favorable to me, like at all, at all. And so, you know, I just don't join in to all the humorism about the younger generation. I just look, a lot of the kids I'm encountering are ridiculously impressive. And gosh, I was just at Yale Law School and met with a bunch of veterans, students who were veterans. And Yale Law School has a really high percentage of veterans now in the student body, which is really interesting. And I asked him, like, what kind of cultural effect did I think that they had? And you know, it was an interesting question. My own sense would be that bats would tend to make a student body more chill in the sense that you've been through a bit. You're used to being around extraordinary diversity. Yeah, words aren't actually violence, violence, violence, violence. This is not life for death. Let me tell you about life for death. Exactly, exactly. But I was just incredibly impressed by, and I have been for a long time, I mean, the interesting constitutional history, the desire, whether or not you're going to get a lot, I mean, obviously, when I was at a law school, I was talking to law students, but I talked to these college students and high school students who don't necessarily want to go to law school and yet are incredibly curious. So there's some positive stuff going on out there. All right, David, when we get back, we have got these dueling second amendment on bonk decisions coming out of the third circuit that we just have to dig into this, like, for seriousness. All right. We'll be right back. A court deadline has a way of focusing everyone's attention. There's a document to finish, a client waiting for an answer, and a clock that doesn't care what else is happening. But if you run a small law firm, the deadline on the case isn't the only one that matters. Payday still comes around. A good system lets the team stay focused on the clients without treating every payroll or HR detail like an emergency. That's where Gusto comes in. Gusto is online payroll and benefits software built for small businesses. It's all-in-one, remote-friendly, and incredibly easy to use so you can pay, hire, onboard, and support your team from anywhere. Gusto helps simplify payroll with an automatic tax filing and unlimited payroll runs for one monthly price without hidden fees and surprises. Try Gusto today at gusto.com/advisory and get three months free when you run your first payroll. That's three months of free payroll at gusto.com/advisory. One more time, gusto.com/advisory. In advisory opinions, we spend a lot of time asking what happens when a rule meets real life. The interesting question often isn't what should happen. It's what happens when things don't go according to plan. That's a useful question at home too. What financial support would you want in place if you weren't there? Ethos helps make one part of that question easier to act on. You can explore life insurance or ethos entirely online. Get a quote in seconds, apply in minutes, and potentially receive coverage the same day. There's no medical exam, you just answer a few health questions online. Coverage can go up to $3 million and some policies are available for as low as $30 a month. No policy can account for every outcome, of course, but taking an uncomfortable hypothetical seriously can help provide financial security for the people who rely on you. Take ten minutes to get covered today with life insurance through ethos. Get your free quote at ethos.com/aos, that's e-t-h-o-s.com/a-o. Application times may vary, rates may vary. Okay, David, the poor third circuit, they cannot escape. They had two dueling second amendment cases that were very similar. They were both about the felonin possession laws at the federal level that say that someone who has been convicted of a felony, defined as you were convicted of a crime where the punishment was a year or more, not punishment was, punishment could be a year or more in prison. Is a felony and therefore for life, you are barred from owning and possessing firearms. Okay, I want to focus on one of them. Well, I'll do the first one. They upheld the firearm restriction against a man with a conviction stemming from a car jacking, but ruled that the man could not be applied to another man based on his prior drunk driving conviction. A punchline, David, I see no distinction between these crimes. Okay, but I want to focus on the drunk driving one, right? Because for the car jacking guy. Interesting. Okay. Oh yeah. Okay. I'm a little fired up. Ha ha. Right. So for the car jacking one, they said, yes, that guy can never own a gun again. For the DUI guy, they were like, no way. You cannot take away his constitutional rights for the rest of his life. So let me focus on DUI guy because that's the outlier one, the one overturning sort of status quo. Our dude is pulled over convicted of DUI in 2000. Then in 2004, he's pulled over again. Also DUI, but this time when you're a recidivist DUI, that's what makes it a felony. Now he didn't actually spend more than a year in jail, but he was eligible for more than a year in jail. It's a felony for the rest of his life. According to 922G, he cannot own a possessed firearms. He didn't know that. Turns out he works at a firearm store and owned a lot of them. And then circa, I don't know, like 2018, his lawyer, and this is sort of a weird part of the fact pattern, his lawyer told him about it. He was like, oh, no. So he got rid of all of his guns in order to comply with the law and brought this lawsuit to vindicate restoration of his rights. Okay. From the majority written by Judge Mady, friend of the pod, wonderful brilliant judge, who I disagree with in this. We find no history that supports disarming irresponsible people where responsible is defined by the whim of the sovereign or the will of the majority. But heller did not cast doubt on longstanding prohibitions on the possession of firearms by felons. Those longstanding customs restricted the violently dangerous within which some felons would be included, not felons writ large. Okay. So to break that apart, because one part of it I agree with, the second part maybe not. The part I agree with and that I am a bit torn on is this idea that if you just say felons lose constitutional rights, and then the definition of felony is just up to the legislature and they can define anything as a felony, I do get queasy about that. Yeah. Yeah. You're wearing agreement on that for sure. Yeah. And then the second part, there's the quote from Heller, right? This decision does not cast doubt on longstanding prohibitions on the possession of firearms by felons. And then he's like, yeah, but you know, I mean, felons, he met violent felons. I think it is a really interesting case. There's the tax fraud version of this case where the guy is convicted of, yeah, like tax fraud 20 years ago, and he would like his guns back wrote a bad, bad check. Yeah. I am a little bit torn on those relatively outlier cases of people who have been convicted of felonies. But a recidivist DUI, to me, is the same as a carjacking. You can jack someone's car with no violence involved. No one's in the car. You just, you know, steal the car using a crowbar. I don't know how you carjacked a car. Something fun, I'm sure. Just because you didn't kill anyone while driving drunk for the second time with a really high blood alcohol level, by the way, to me, doesn't make it not a violent felony. And the fact that, like, we go back to originalism and look for analog laws at the time of the founding. Oh, my God, David, I am the member of, like, vertical analogy problem, like how close does it need to be? There was nothing at the time of the founding, like a car that could go 80 miles an hour, like a ton of steel traveling that fast, where if you get hit, you die. That's just the end. Your carriage could kill people, I grant you, but it would like fall on them. And more likely, they might lose a leg or something. There was just nothing like a car for the purposes of this where driving it irresponsibly is a weapon, basically. Yeah. It is shooting randomly into the dark. You're not always going to hit someone and kill them. But the chances seem pretty good compared to responsibly firing at a shooting range. Okay. So here is a meal, bové, also a judge on the third circuit. In the founding era, a felon could acquire arms after completing his sentence and reintegrating into society. And so, without a historical basis for the presumptive permanent disarmament of felons after they have repaid their debts to society, 922-G1 is unconstitutional as applied to such persons. So David, this brings up my last point that is interesting. You've been convicted of a felony, so you lose your constitutional rights forever. And this is where the third circuit had a lot of concurring opinions and dissents because there is a cure process now where you can go to DOJ and ask to get your constitutional rights restored. This guy didn't do that. It is a little bit messy because his convictions were so long ago and he started this process before that cure period existed, that cure process existed. So those facts don't matter a ton to our legal analysis, but I just note them. This really divided the third circuit on all of the reasons that I just talked about. Who gets to define a felony? Do you lose your rights forever? And what about non-violent felons? Of which, again, I'm with the dissenters that this isn't a non-violent felony, but the question of non-violent felons is still a relevant one that I struggle with. I hand it to you, David. So I would put it, let's do three categories. Violent felons. So a carjacking isn't just stealing a car. It's typically like you take it while the occupants are in it. In other words, get out or you die. You know, you might not have a gun with you or whatever, but a carjacking tends to be something different from just like stealing a car. So I do see that as a different treatment. I mean, if someone opens my door and says get out of the car, I'm taking it now, I'm going to get out of the car. I'm not going to like, and so it's not violent. That's just, they ask me to get out of the car and I do because my car isn't worth my life as much as I do love it. Yeah, true. I mean, true. I would put it as if there's a human being demanding your property while you're in your property. That's an act of extraordinary aggression. Then you have. It's violent adjacent. Yeah, violent adjacent at a minimum. And then you have, but I would say you have a violent felon. And then there's also a dangerous felon. Okay. And then you have a non-violent felon. So he was a dangerous felon. I loved your analogy of like just shooting a gun in the air. If somebody was arrested, Yosemite Samming, for example, that they've just decided to start firing their AK-47 randomly in the air and nobody's hit or hurt, that person should know the gun. And if somebody is getting behind the cult wheel of a car, turning it into potentially a deadly weapon. Again, as you are noting, very high blood alcohol, they're dangerous. That's a dangerous felon. And so I do not want a dangerous felon owning a gun. Now, you have the other elements that like, let's just say the typical, like let's say a white collar imbezzler. They were skimming off the top of checking accounts in a local regional bank or something like, you know, I'm just making that up. Now, is that somebody who should lose their right to arm self-defense for the rest of their life? That's a harder call for me, but I will also show. They should disrespect for the law. So like, I just wanted to make the case that, because it may seem obvious that that person shouldn't lose their constitutional rights for life. I think that's probably where most people are going with this. And I think those arguments are pretty obvious. But on the other hand, you got convicted of a serious crime where you sort of willfully disregarded our laws and our societal morality. And so maybe you should. Yeah, I mean, like, if I'm sitting there listing the great injustices of American life, one of them is not white collar felons are blocked from owning an AR-15. That is not at the top of my injustice list in the United States of America. But again, you know, going back to this point, and it's a shame that most people tuning in couldn't see Sarah when she actually started talking about these looking at these comparators, historical, you put your head in your hands briefly. Like, what are we doing here? And you just get back to this again, how many times do we have to say it? Like, looking back at legislative enactments and looking at the legislative enactments of a very different time in American history when firearms were very had very different levels of danger attached to them. And then saying, well, obviously these legislatures legislated to the outer bounds of their permissible regulation with no court holding that at all, just sort of looking at a legislation from say 1881 and saying, well, they went as far as they possibly could have. When they're not an interpretive body, and there's no evidence that they did go as far as they possibly could, what are we doing here? It just seems just, it really just seems like living constitutionalism dressed up as history. And I can't get any, I can't wrap my head around it being anything other than that. So let me read you some quotes from some of the third circuit judges involved in both of these cases. I'm going to start with the car jacking case, David Lat, hopefully an original jurisdiction pulled out all of these great quotes for me to read a podcast. David, okay, so start with friend of the pod, Judge Bevis, who wrote the majority opinion, this is again in the car jacking case where they uphold the law. Boss was convicted of threatening others with physical violence, and violent convicts like him may prime aphasia be disarmed. We will thus affirm the end. And then, of course, you have three of the judges just noting that they think all felons can be banned from possessing firearms. And then you have Judge Jennifer mascot saying, I would decide this case on a more limited basis, just as applied to Mr. Boss, that you can disarm him. And then there is a dissent by Emil Beauvais and Peter Fibs. In the founding era, a felon could acquire arms after completing his sentence and reintegrating in society. And so without a historical basis for the presumptive, permanent disarmament of felons after they have repaid their debts to society, 922 G1 is unconstitutional as applied to such persons. Okay, so now we move over to our DUI case. I want to read this other part of Judge Mady's opinion because it was kind of beautifully written. Because acts in congruous with the virtue necessary for enjoying the rights of our political community have always justified punishment and the corresponding loss of civic privileges. But virtuous life is a perpetual project with redemption and reentry into the community a constant promise. And with that rehabilitation comes restoration of the civic privileges guaranteed to citizens by the Constitution and the freedom to again exercise the natural right of armed defense against threats and tyranny. For the reasons above, we will affirm the District Court's judgment. His is going a little further than this cure process, by the way, David. His point is like, you had the punishment. The punishment was your jail time, your fine, etc. Like we done now. Again, there's there's an argument for that. But I'm not sure to your point, David, that I think digging through the laws at the founding tells me much about what the right answer to the problem is. There was no felon in possession. There were no cars. There weren't really guns like we have today. Like this is a little like the violent video game case where Justice Alito interrupts Justice Scalia and says what Justice Scalia is trying to ask is what did James Madison think about violent video games and did he enjoy playing them? Like, okay. Yeah, that's sort of where I am on that. Yeah. Well, and you know, that kind of the the shade that was thrown at the phrase responsible in law abiding is interesting. That, you know, the Supreme Court think that the end of the day, all of this is going to shake out into a jurisprudence that essentially says to think that limits firemen are in two major ways. One, dangerous people don't get to own firearms and nobody gets to own excessively dangerous weapons. And so that that'll be the ultimate outcome now, whether an AR-15 qualifies as an excessively dangerous weapon. I'm skeptical. AR-15 combined with a magazine of a certain size, perhaps, but just an AR-15 all on its own, I would be very skeptical that they would hold that. But to your point, David, what you just described would be the same under a tears of scrutiny analysis. Totally. I know. We're going to end up there. We're going to end up constructively with tears of scrutiny. And I think we're going to end up constructively with intermediate scrutiny on these firearm regulations backed door to through the Rahimi, not exact match, framework. And I think that's just we're going to end up with. And we're all going to pretend like it's something different than intermediate scrutiny. When it's not, it's the same thing. If Professor Sharif were here, he would tell us how different it is. So I look, I think this might be one of those convergent evolution cases. We're actually, yes, you will end up in the same place, whether you use text history and tradition or intermediate scrutiny on this fact pattern. But they do travel on different roads. There's no question. I don't think that the THT people are secretly using intermediate scrutiny. I think they actually are doing THT. It's just going to end up in the same place, although I think the weapons and common use idea, that to me. What? So if I ban the weapon really quickly when it comes on the market and prevent it from getting into common use, I haven't violated the Second Amendment. But if I wait too long, then it's guaranteed under the Constitution. That one to me, I see no THT involved in. That feels just more like pragmatism. It's like the Eighth Amendment cruel and unusual punishment. We're just like either you look at what it was at the time, which is flogging in baskets, or you look at how things have evolved. But no, weapons and common use makes no sense to me. David, when we get back, I have a poepery of things to discuss with you. There was a CNN piece by Joan Biscupic about Justice Jackson, which is interesting. We have this pseudonymus. How do you say that? pseudonymus. pseudonymus. pseudonymus. Yes. pseudonymus. No, no. I can't. pseudonymity. No, we need a new, a new shorter word for that. It's like politicization, which I also have trouble with. Anyway, we have that piece. And I mean, Jack Goldsmith wrote this piece on Alyssa Slotkin saying that we should punish people in the Trump administration to deter other folks from going into the Trump administration. He and Bob Bauer had a fascinating conversation about whether that is okay, not okay, really dangerous or sort of in a real politics way, just what's gonna happen. So buckle up. So David, we'll be right back. I'm gonna start with Justice Jackson. Okay, David. So the headline of this piece is Why Justice Katangi Brown Jackson Goes It Alone. Justice Katangi Brown Jackson over the past two years has been nearly as visible on the book circuit as she has been at the Supreme Court, recounting her personal struggles and professional successes and emphasizing that she is the embodiment of her ancestors dream. As she joined for her first lady, Michelle Obama and her brother Craig Robinson for their popular IMO podcast this summer, Robinson referred to Jackson as the first African American woman on the court and held up her book Lovely One. But as he did, Robinson mistakenly said the lonely one, the momentary blip, he sheepishly corrected himself, captured Jackson more than her hosts likely realized. So David, this is both about her on the bench and off the bench behavior that has been alienating her colleagues on the one hand and has charted this very different path of what she sees the role of a justice to be, you know, I've talked a lot about my why-axis institutionalism. And I said, her and Justice Gorsuch are my epitome of low institutionalist justices. They do it in different ways. But yeah, Justice Jackson sees her job as just what she thinks the law is. There is not really this like 230 year experiment, starry decisis, isn't what she's here to do, you know, looking for precedent. And, you know, there's been the Q&A on the bench where she has taken more time than the other justices. David, fascinatingly, like there's a clock on the bench. This isn't like, oh, I didn't know I was talking. Like, they all know. She does. Yeah. I mean, I've honestly wondered about the group dynamics there because these are not, I mean, if you're talking about nine people at the very apex of their profession, there is nowhere to go upwards from where they are. These are individuals who are by and large used to being very respected. They're used to being very deferred to in many circumstances, if not most circumstances. And then to have one sort of really step forward and try to and sort of command the stage, I have been very curious about the dynamics that that creates. Well, and we see Justice Kagan often not joining her separate dissenting, Jackson separate dissenting opinions when she takes sort of rhetorical, flourishing swipes at the administration, and especially at fellow justices. Justice Sotomayor has also kind of stopped joining them. There's this one line that says, there is division among even liberals over whether Jackson's methods, particularly as she publicly impunes conservatives integrity, are alienating and counterproductive. Those closest to Jackson say she is not oblivious to the hard feeling she has generated. They say she is moving intentionally, speaking to an audience beyond the bench, stressing what she sees as threats to democracy. There's also this great line that when Justice Ginsburg was the most senior liberal justice and therefore she got to write the primary dissenting opinion when it was an ideological divide on the court. And she called it the "I write you sign, practice." Meaning, right? Isn't that great? I want to say that in my household. I write you sign. I like that. And the thing is, I'm the most senior liberal justice. So I get to design a sign, the principle descent. I assign it to myself. Get on board. I'm conducting the train. But since Justice Jackson has joined the court, Justice Sotomayor has been the senior most liberal justice and time. And again, we see Justice Sotomayor writing the principle descent and then Justice Jackson writing a separate descent to say, and another thing. And the argument is, it undermines takes away from the punch. So can I offer a theory and tell me what you think? Sarah, as I was reading this, I was thinking, she is the liberal wing of the court's Clarence Thomas. Now, in the sense of the cheese stands alone, not in the sense of temperament. You know, they're very different in temperament. I mean, obviously she's much more talkative than Thomas, Thomas, until they went through the sequential questioning practice that started in the pandemic. He never said any, so she's the opposite of that. But I'm talking about carving out your own distinct identity in part through opinions that nobody else joins. And I think that that's part of what Thomas does. He has some sort of pet constitutional theories that instead of, say, writing a law review article, he'll write a separate concurrence or descent. He really does stake out. You have no, you have no question, no doubt, etc. That Clarence Thomas has a distinct judicial philosophy that he has articulated at length in separate writings, often that nobody else joins. But he's so temperamentally different from Justice Jackson that the comparison doesn't spring to mind, but he is so independent. He really is. And it seems like she's just as independent as he is, but temperamentally very different. Okay, so David, here's my question to you. Okay. Who is the most influential liberal justice on today's Supreme Court? I mean, I think it has to be Kagan. Ooh, explain. Well, the reason why I say that is because Kagan seems to be the justice most likely on the liberal wing to join with conservatives, especially on issues around free speech or religious liberty. I feel like that practice where she is sometimes up for grabs and sometimes, and you know, I'm not saying the other, the other liberal justice is never joined with the conservative majority that I think it makes her a kiddoble justice in some ways. And as a kiddoble justice, that means that the other members of the court might want to compromise to some degree to get. the gettable justice. And so I think that there is a way in which she can influence the writing majority opinions to create that across the aisle, kind of consensus, that I think is very interesting. I do wonder, for example, in masterpiece cake shop, because if you remember masterpiece cake shop, that case was decided on very narrow grounds related to the distinctly different ways in which a conservative Christian was treated versus somebody who was, again, this is one of those Colorado cases, where Colorado botched this at every level. But Colorado is quite clear from the record that if you were a conservative Christian, your conscientious objections were going to be maybe even compared to Nazi Germany. And if you were liberal and you had a conscientious objection, that was going to be fine. And that was going to be totally cool. And so you didn't get to the bigger free speech issue in masterpiece cake shop. But just as Kagan joined with the more conservative majority, along with Briar, is to make it seven two. I think that's an example where you had the gettable justice that resulted in perhaps the narrow or opinion that may have then otherwise have existed. So I, I don't know. So do you disagree with that? Sarah, I would defer to you on this because you just wrote the book on the court. Okay, let me run this idea by you. Okay. Justice Kagan is the most influential justice within the court. Okay. Justice Soda Mayor is the most influential out of the court, meaning like, you know, the headlines of the day, how cases are being decided right now and her dissenting opinions that have some great lines on them. Yeah. And Justice Jackson has the potential to be the most influential justice historically on this court, most influential liberal justice, historically on this court. Interesting. She can come up with a theory of constitutional interpretation, which looks like she's heading in sort of a purposivism way, who knows that she's really hoping for the like 30 years from now, maybe not quite that long, maybe 20, 25, but like that, that's who she's talking to. And so we don't know yet whether she's historically going to be the most influential liberal justice on the court. That's interesting. That's I like the distinction between on the court, influential outside of the court, influential historically. I, you know, of the six Republican appointed justices, how would you break that out? Oh gosh. I'll need to, I mean, six is so much harder than three. It's so much harder. Yeah. It is so much harder. And I just sprung that on you. Maybe we should table that. Maybe, but David, you did have this interesting point that you put into slack a couple days ago about Justice Alito. Yeah. Share that idea. Yeah. So this is not original to me. This comes from Jason Willock at the Washington Post. And he was essentially saying, if Justice Roberts project is perhaps writing in such an institutionalist way that he is making sort of originalism palatable or conservative jurisprudence or palatable to the middle of America, that Alito is actually doing originalism in such a way that he's making it more palatable to the far right in America. In other words, he's an ambassador for originalism to the extreme right, whereas Justice Roberts is an ambassador for conservative jurisprudence to the American middle. And I thought that was interesting. That was very interesting point, because if you go back to right after the Bostock decision, Senator Hawley said the conservative legal movement has failed. If it has yielded Bostock, then it has failed. And since that time, you've seen the conservative legal movement deliver some pretty decisive victories. That, you know, originalists and sort of even common good constitutionalists would agree on such as dobs, for example. And so I found that to be an interesting theory. I don't love. I'm, you know, I'm always immensely caveat anything that is trying to get into the psychology of the justices. I mean, I tried that with Gorsuch when I interviewed him the first time. Shut down. Shut down. I can't remember if the phrase was something like, yeah, I'm not going to get on the couch or something along those lines. Then, yeah. Now he and the Kim babe and Tumbo do pretty hard. I wagged the finger in my face. Yeah. But yeah, I'm, I'm, I'm low to attribute motives, but it was a fascinating theory, Sarah. All right. I have been putting this off as long as I can, so I don't have to say the word again. But I want to talk about this Eugene Volok piece called one-sided pseudonymity. David say it again. pseudonymity. pseudonymity. Okay, wait. If I just break it up into two, pseudo, I've got that nimity, pseudo nimity. I think I've got it now. Okay. All right. We got it. One-sided pseudonymity. Great. Just don't keep making sounds in the middle of the word, which I want to do. All right. Let me read this to you. Our legal system generally requires parties to name themselves. Doe versus Jones are allowed only in exceptional categories of cases. Some of those cases have been litigated as anonymous on both sides, i.e. as doe v row or the lake. But even when the plaintiff's identity is kept secret from the public, though not from the defendant, the defendants is often publicized. I will argue below that in at least some classes of cases, this one-sided pseudonymity is unfair to the defendant, especially where the plaintiff alleges sexual assault by the defendant. David, he lays out a, to me, what seems like a really obvious case. One side getting to say, like, I don't want anyone to know who I am because there could be repercussions to my safety, to my social standing, etc. I think that is absolutely true in especially sexual assault cases. But I'm not sure why that side gets to name the other side right off the bat, right? They get to file a lawsuit, ask to remain anonymous themselves while naming the defendants. And basically his punchline is, we should either be doing one or the other, as in both sides have to out themselves, or both sides get to proceed anonymously. But this idea that like, it's a really bad to be a plaintiff in a sexual assault, civil suit, but totally fine to be a defendant in a sexual assault suit. I think obviously it's not the case. Yeah, I mean, when he said it, it just felt really obvious. And then let's add this element on top of it, Sarah. If you're the plaintiff, even in civil suit, you bear the burden of proof. So you're actually naming people who, as of this moment, die by default are not liable. Correct. And, and you're potentially able to use that threat as an almost extortive threat to get a settlement. Like, hey, if we settle this now, your name's not going to be in this lawsuit. That's a pretty good offer on the table to pay something. Yeah, it really is. But I just, you know, I keep getting hung up on and sort of thinking about the one-sided pseudonymity that, wait, oh, hold on. If you're filing a claim against another person, you know, it's not quite guilty until, I mean, innocent until proven guilty in the criminal sense, but it is not liable until proven liable. And even though the burden of proof is relatively low, preponderance of the evidence, you still bear it. If you're making the claim by default, that person is not liable as of yet. And so I do think that that is a, you know, a symmetry where if I have a right to file anonymously and I choose to exercise that right to file anonymously, I therefore have to grant the privilege of anonymity to my individual defendants. Might not be a bad rule at all, to be honest. Speaking of burdens of proof, I also feel different in the criminal context because you have to meet that probable cause and in the federal system, of course, get a grand jury to indict in order to proceed, but in a civil suit, you don't. And I think we have certainly seen mobs can be worked up so that there are consequences against someone accused in a civil suit before they ever have a day in court. They could lose their job, et cetera. And then even when they win in the end, it's like, well, but I don't get my job back and I don't get the last 18 months back. And so again, it becomes that, you know, the potential for abusive suits as he talks about, for extortive settlement offers. To me, I read this and I was like, yeah, why in the world? I don't know the arguments for the other side. Yeah, you know, and there was just a report and I'm just kind of brushing up on this case, eye-popping damage award. I believe it was about $6 million to MIT researcher or professor who was accused of sexual harassment and he wins the defamation suit. I mean, he lost everything, his job, his reputation, just all of it. And then it turned out at At least according to the jury that heard the case, I don't want to say she made it up, but he was correct and she was incorrect in her accusation. They were unpersuaded by her accusations. There's a good way to put it. And so unpersuaded that he got millions of dollars in compensation. But I would bet almost any amount of money, I would bet maybe those millions of dollars of compensation that if he could have the life back he had before the allegations, he'd probably take it over the six million dollars. There is a point at which money, especially if you, a point at which if you are somebody with a public reputation, somebody who has worked really hard has achieved a public reputation of some kind, that really is irreplaceable. There's just, there isn't a amount of money that can replace that in your mind, in your heart. He's the pain, it can improve your life, you can do all kinds of things, it can punish the person who, who, you know, wrongly accused you or falsely accused you, it can do all of those things. It's a heck of a lot better than nothing. But yes, that loss of reputation at some point is just irreplaceable. All right, David, really quickly I just want to get your, your, your quick take because I haven't asked you and I'm really curious about what Michigan Senator Alyssa Slotkin said. Let me read you, the quote, although I do think the context, like the whole context matters, but I can't do the whole context. So we're going to do the best we can. So this is an event at the University of Chicago on October 13th. She basically was suggesting accountability for the people who enabled Donald Trump. And then she says one of the reasons for that, she lists other reasons, right, that they did bad stuff and were corrupt and all of that. And at the end, she says that another reason is to deter people coming out of school from working for the Trump administration, quote, I want them to be like, Lord, that might be buying myself a ton of problems that I don't want. And so let me avoid participating in that. I want that deterrence message sent. Okay, David, just impressions. Is this just an accurate description of why we indict people for crimes because we want to send a deterrence message to other people to not commit those crimes? That seems totally like a viable thing to do. Or was this political weaponization of the criminal justice system to try to discourage young people from going to work for your political opponents? So I think if you look at the whole context, which really matters, I first thing I saw was there was a tweet by this group called the Chicago thinker, which is a libertarian conservative publication student run publication for University of Chicago. And it clipped 90% of it was the deterrence of young people point. And there was just very little before. So I thought, I bet there's more. So I went and I looked. And yeah, I think the whole context is very different. So the whole context is essentially twofold, one, we have been frustrated in opposing accountability on Donald Trump himself that through immunities, through obviously the 2024 election, through unwillingness to impeach him, in many ways, he's become untouchable. But we are still need to impose accountability for corruption. But we can't be doing that full time. That can't be the only thing a democratic Congress does. That can't be our whole personality. So she says, so then what do we do? She says, well, then we go after the signature cases or the egregious cases, the very egregious cases, and you go after the people who enabled Trump. Okay. I'm with her on that. So number one, I don't want that if there is a democratic Congress, turning them into the full time accountability brigade, I think could be really counterproductive, especially because there's actually a lot, actually legislation that needs to happen. And believe it or not, I do think there's a legislation that could pass through a democratic Congress with Republican help, specifically some of it around Ukraine, et cetera. So I agree with her that their number one job is not, should not be facilitating prosecutions to Trump officials. I also agree that you need to have discretion here, pick the worst actors. And I also agree that if Trump is untouchable, all of the people, the senior people around him, who've participated, like a hexet, like a cash betel, like a Kristino, the corruption around Trump is mind-boggling right now. So taking serious cases and pursuing them, I would argue it's going to be, they should pursue them through impeachment by default more than through criminal prosecution for multiple reasons, one of them, including that probably preemptive parts are going to foreclose the prosecutions to begin with. So I'm on board with that. I think if the second part of it, if that's all you heard, I would absolutely be like what are you doing, you know, that you don't want to be deterring young people from going into the administration. But I think that the second part is inseparable from the first part. You're going to go after key enablers of Trump in the most egregious cases. And hopefully that will communicate to young people that, by the way, public services at your piggy bank, public services isn't the thing that you go into to wreak vengeance on your opponents, et cetera, et cetera. And layering on top of a lot of this, Sarah, is a reality. And I don't know if you saw Ted Cruz recently talking about some of the difficulties he's having and hiring young staff because they're so freaking anti-Semitic and that there is a cohort of young, new right people entering into the government that let's just say are not the idealistic cast of characters that you and I, for example, may have encountered earlier in our careers and are in fact some rather vicious, toxic and already morally corrupt individuals. And so I think if you give it the whole context, I'm largely in agreement with her. If you focus on the last part alone, divorce from that context, I can see why someone would call it outrageous. But I also think the bottom line is you cannot, I just think it's a non-starter argument to go to the next Congress and say, well, you really shouldn't focus on accountability for corruption. There was a Fox News poll that put corruption as the number one voter concern. Now I'm not sure that I believe that. Sarah, I'm going to do, I'm all bought in. I think that the last few news cycles for the Republicans has been so bad because it keeps corruption top of mind. I actually think it is overtaking the economy for a lot of people because it's tied into it, right? It's like, I'm struggling. The economy's rough and you're grifting. And I mean tens of millions of dollars of grifting all around you, everyone. It just looks like it's infected the whole farm, Amy Walters over at Political Report wrote this. If we have the blue wave that the polling looks like we're going to have, it is probably inaccurate to call it a blue wave and more accurate to call it a red undertow. And I think that is corruption based, not the economy because if it's as large as we think it's going to be standing here right now, the economic numbers themselves cannot explain it. Well, you know, I'm glad you said that because I've been kind of thinking that. The more I look at it, the more I think if you win and it's a corruption election and then you go, no, I'm not doing anything about corruption because it'd be too divisive. You're not doing what you've been elected to do now at the same time. Gerald Ford sacrificed his political future so that we could actually have a redo instead of a tit for tat going on forever, I mean, I don't see how that ends. We saw the Biden administration try to do it and they were really bad at not weaponizing it because it's really fun to do it and to go get your enemies and to prevent them from holding office again and think that you're the good guys. Well, we need to make sure voters don't pick them. So let's indict them is a real slippery slope between holding someone accountable and just wanting to hold on to a political majority and power and around and around we go. See, that's where I've changed my mind on the Ford pardon. I used to be right where you are on the Ford pardon and now I'm thinking, nope, he should have been prosecuted. At some point what you begin to reach, what this fear of tit for tat does is it creates a situation where you say, okay, I get to go into government, I get to loot the treasury, I get to extort 50 million like while I was literally typing a newsletter about this very issue. So that's coming out tomorrow. As I was typing Sarah, the news broke that of the $50 million contract through Alina Haba on the part of the Venezuelan billionaire and what's he get, he gets a pardon. He pays Alina, do you think for five seconds? Alina Hab is legal services or worth $50 million over four years. That's an NBA contract right there. And he gets a pardon, but apparently it was worth it to him. And if we get in this position where you say you get to walk in, loot the freaking treasury and dispense favors and then to say, well, you can't hold me accountable because that's just going to start a tit for tat cycle. That's why I thought slot can say serious one. Because pick the worst actors here, let's pursue the worst actors here. That to me, that to me strikes the right balance. If you're going to say we're going after nobody, you're creating this one way ratchet where you just get to be more corrupt. If you say we're going after everybody, you not only sidetracked the whole Congress, you start to create this whole sense that all we're doing is just electing, competing, investigatory panels and bodies. If you choose the principal offenders and pursue them in a rational way, which is why I'm advocating don't default to prosecution, default to impeachment. Because the great what if is if Mitch McConnell said in 2021, hey, I'm going to rally the caucus to actually impeaching to evict, I think American history is very different. And I do think he may have had that in his grasp. He may have had it. And I also think Republicans who are willing to go to the wall for Donald Trump politically are not willing to do it for Pete Hegseth. Not necessarily willing to do it for the whatever remaining Christian-owned political career that exists. So David, if I get on board with your version, will you get on board then with my requirement, which is that it needs to be a Republican attorney general at the Department of Justice? Ooh, interesting. If you're the attorney general, Chris Christie, yeah, right. Sarah is good. I'm like, it's you, yeah, yeah, no, I mean, if it was a, if it was a, it, it have to be the right Republican, obviously, but I would think that if, if you want to be a heal the country and impose accountability, because I, I think those two things have to go together, I don't think you're going to heal without accountability. I'll get on board with that, but then you can't just have a hyper partisan administration. No, I, I, that, that you and I are going to be 100% on board with that there's going, there needs to be a wet, the next president is going to have to transcend partisanship to bring this country together. And that is something that Joe Biden was sadly incapable of doing at least on any sustained basis. People have, there were a couple of pieces of legislation where he was able to get them across a bipartisan deadline. Yeah, this is where it's going to be so hard, David, because on the one hand, there's going to be enormous pressure to, for instance, add seats to the Supreme Court, make Puerto Rico and DC states. I don't think a president can say I'm going to try to heal the country and prosecute these five cases and also expand the Supreme Court because they don't like the outcomes of the cases. That's why I don't, I want to be realistic about this. A democratic president is going to have to do some democratic liberal wish list things that are extreme because Donald Trump did a bunch of extreme things. Therefore, I think you need a Republican attorney general to be able to bring those cases without it looking like it's all part of the same transaction. Crazy liberal left wing stuff includes the prosecutions, but not if you have a Republican AG. David. That's why I'm really hoping in the midterms. We do not have an argument from the DSA left that they're the path forward that, you know, in other words, I know you will, I know you will, but there's situate, like, let's suppose, if El Said, at this point I'm expecting El Said to win, it would be, you know, you know, if El Said wins by, they find out if 3 a.m. the next morning that he's won by 1.2 points. Yep. That's a completely different scenario than El Said that race is called at 7.30 p.m. or 8 p.m. or whenever. And he wins by 10 or 15. Not to the DSA, but I take your point. Maybe to us. Yes. Yes. To the rest. Before we go, David, I got many emails asking for a correction when I said that Texas doesn't have any natural links. It's wondering if we're going to braze this. And you know what? We do issue corrections on this podcast pretty frequently. We get things wrong all the time. Yeah. Today's not that day, guys. I'm going to fight this one. Cato Lake is the most famous quote unquote natural lake in Texas. It's actually on the Louisiana border, so like Louisiana has it too. So I don't even know if it counts as a Texas lake, but fine. It was created by a log jam on the Red River. And then they damned it to keep it. That is not a natural lake. Sorry. You know, as the Tennessee and who is obviously going to function as the Texas Supreme Court by my historical right, you win. I don't think it's close. I mean, you're exactly correct. I mean, there are a couple other quote unquote natural lakes, but they're like a few inches deep and they call it a lake. So like it's large, but I would call that a wetland, not a lake. Yeah. Yeah. Not a lake, and if there's the equivalent in Texas, that's not a lake. Thank you. Okay. So look, can you quibble about a couple of these green lake, maybe Sabine fine, but like literally you can come up with two because I reject Cato, I reject Eagle, and then there's two others that again, I think probably are really lakes. So I'm not going to issue a correction. I stand by it. Texas doesn't do natural lakes. It's confirmed, affirmed. I don't have to do nuance on Texas water reservoirs. All right, David. I'll see you for the next advisory opinions.