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Welcome to the divided argument, an unscheduled, unpredictable Supreme Court podcast.

I'm well-boed.

“And I'm Dan Epps. Back in the studio, after another successful live show, I think, was it”

successful? We didn't get, uh, nobody threw anything at us. Yeah. I did, you know, have a fun little game where I tried to convert the issues in a couple cases into, you know, the up-goer five language with only the top ten hundred words.

But apparently the list that Claude was using was wholly inaccurate, or just too bad. So next time, next time, I'll, I'll, I'll try that, try that again. I, you know, when I was reading it, I was like this does seem a little off. But, or do you got an email about that from listener Chris Peterson? So, you know, maybe that, that experiment will have to be reused at a future time.

Uh, you know, maybe the top ten hundred words changes over time. Yeah, maybe or maybe there's, there's a, a Google, and there's like a list that is, you know, kind of like one of the top Google heads that seems like totally wrong. Okay. Okay.

So we are recording on Thursday morning. We just released an episode this morning, and I imagine our listeners were hoping that was our emergency birthright citizenship recap episode, which it absolutely was not, it was an episode we recorded last Friday.

So we're never quite as timely as you would like us to be listeners, but we do our best.

And we've got another episode in short succession, shorter gap than we usually have. Uh, we got to keep guessing. Okay. So, uh, game plan for today, you know, we're going to keep it trying to keep it relatively constrained in terms of our ambition.

Definitely discuss the role argument in the barber case, the birthright citizenship case. And then dive into one opinion, trials versus salas are, and that's it.

“Did you have anything else on your to do list for today?”

Uh, no. That should be enough. Okay. Great. So that keeps it simple.

So, uh, step one, we had the argument in the barbra case. So Trump versus barbra. So let's talk that through, you know, I think I can say at the outset that the conventional wisdom is it's now looking like maybe a kind of 6372, uh, when for the challengers, does that line up with your expectations?

Uh, that's right. I think it wouldn't be inconceivable for it to be a one or nine o'clock for the challengers. Just as a lead, I've seen pretty hostile. I think he asked the most skeptical questions I agree. I may have gotten if I had to, if I had to bet on a line up, I guess I bet on 72, but I

have the argument, you know, certainly didn't make me think, uh, well, certainly didn't make me think the president had a chance.

Sitting in the room, President, yeah, the first visit by a president to a Supreme Court

“role argument as far as anyone is aware of, I think that's right.”

So I have many questions about this. So I think he talked about attending the terrifying argument, and decided not to at the end. So my guess is, you know, he wanted to attend the terrifying arguments. People told him, you know, don't attend, it won't help, but it'll just irritate the court. And then he lost.

So he figured, hey, people were wrong. Maybe it would have helped out by there at the, ha, lost anyway. So why not? What do you think? Worth a shot.

Yeah. I would love to have been there to see how he was kind of reacting in real time. Yeah. And see if he was kind of muttering. Right.

So the other questions I have are, so it sounds like the court didn't acknowledge him at all. So they didn't run the audio. And I think people who were there said, you know, there wasn't any, you know, any official welcome or anything. Do we know?

So it was he allowed to bring a phone. I mean, normally nobody's allowed to bring a phone in, right? But I can't imagine they ran the president of the United States through a metal detector. I assume he had secret service with him who had weapons, which, of course, you normally wouldn't be allowed to have or, what do you think?

Uh, yeah, I think that's right. Though I remember I was in the courtroom with President Obama during, just to soda my orders and vestuture ceremony. So presidents have come to the court for ceremonies like that. Yeah.

And the security was laxer than I expected in that I was able to get in the room as a law clerk, without ever having gone through any security screening.

detector in the building.

And I did not have to go through any kind of additional security to get in the courtroom, which I thought was kind of surprising.

“So I mean, if you really put your mind to this, right?”

So normally the rule that nobody can have a phone means you can't get like real time advice or whatever and give it to the advocate. But in principle, if the president had wanted a pass, you know, the president had been checking his phone to see if things were playing or something, you know, whatever. And then wanted a pass John Sawyer and note, do we think you would have been allowed to?

I can't imagine the Supreme Court police physically stopping him from doing so. I do. I thought it was interesting. My understanding is he left a few minutes after the end of the SG's argument. He also posted a truth shortly after leaving the argument, I think.

Do you have an account on there on truth social? Yeah. No. Okay. Do you think anyone?

Well, can I go view his tweets without his truths or whatever they're called without

an account? I mostly see them when people repost them on other forms of social media. Yes, I believe you can. I believe his truth is available for all to see. Maybe maybe I should make an account just to claim the space.

“I feel like you should make an account over there that's like at-based will-bode.”

Uh-huh. And you could just kind of go off. I should post-based things. I don't know. Do you have a lot of based thoughts that you're not posting?

I feel like you must have some. Ah, don't come at. That's a new mission. Anyway, do you think-this people were quite upset that the president was the 10th of the argument.

Do you think that was bad, good, indifferent? I thought it was-it was, you know, strange. I don't have an inherent objection to it. There is, as I understand it, there actually is a seat at the court that is reserved for the president of the United States.

So, people said that. I remember being told that when I was quirky and then I'd forgotten that until somebody mentioned it. Right. Although, as I understand he did not sit in this reserve seat, whatever it is he said at the

“public gallery, I think the reserve seat, since the president is previously only intended”

for ceremony occasions, it must be for the kind of ceremony I'll set up. Okay, here's the truth he posted shortly after leaving the argument. We are the only country in the world stupid enough to allow birthright citizenship, president Donald J. Trump. So, I take it, he was not happy with how went.

The other funny thing about this truth is that it's sort of off-message, because of course, his position is that we don't allow birthright citizenship. I mean, you know, he claims to be interpreting the law as it is. Yeah. It's a good point.

And claims that the law as it is does not allow the thing he's complaining about. So, now again, it's like, you know, as all lawyers, we can understand, like, well, this is my legal position, but I understand this happening anyway, but I feel like the message discipline is a little lacking. Yeah.

I mean, that is an interesting fact that I think relates to a larger problem, which is that in a world without consistent rules about citizenship that every country follows, you can end up with these conundrums or you can end up with stateless people, right? If someone is born in a country that doesn't have birthright citizenship and is, you know, the child of some country that doesn't, you know, automatically gives citizenship to all children

of children of citizens. You can end up with someone that has the passport from has no passport, right? And I think that's deeply problematic. It seems like, you know, whatever your view is about immigration and citizenship are, you know, we should not have a system where there are some people that just cannot be citizens

anywhere. And like, you know, I don't know what, in a world without birthright citizenship, if there are, you know, a bunch of folks born in this country who maybe don't have citizenship or not granted citizenship by, you know, wherever they come from, like, what happens to those people?

Yes, or they just like detained forever, or they just allowed to, you know, go about their business, but can't really do anything, can't work, can't travel? Well, I mean, many countries might allow you to be present there, especially if you've

never asked to go without being a citizen, but, yeah, just to be clear, it's not actually

a fact. You know, there's a, there are various new stories, maybe they have to where it's, you know, say there are like 30 countries that do have a similar, yeah, to the U.S. role. But I mean, it is true that, like, in Europe, that's, you know, that it's not, not the way it's done there, at least.

Right. And you're still true. You could imagine there could be people who are born here who don't have, for whatever reason, who are not eligible for citizenship in the country where their parents are from.

Right.

“But they're all sorts of inconsistency problems that are hard to totally resolve, you”

know, like in, back in Wang Kemark, the precedent that, that sort of, as the most central

of this case, one of the, at least one of the asserted features of Chinese law at the time, was that it was just not possible to lose your Chinese citizenship. You were just a lifelong subject of Chinese emperor, whether you're like, they're not. And then, of course, other countries do let you run a house. There are a whole lot of sort of conflict of laws, conundrums.

Yeah. And I don't know what you do. Conundra? Ooh. Maybe.

Or is that one of those made up? It's possible. Yeah. Yeah. I did not think, so I, I did think the SG John Sauer, sort of, as a lawyer, did a very good job.

You know, he had, he had answers, again, I'm, I mean, although he was, he was criticized for, for seemingly not having some answers to questions that, you know, at least the commentary at thought he should have anticipated. Well, like, most notably Justice Gorsuch saying, do you think, you know, Indians today are

“birthright citizens and he sort of stumbled on that?”

Yeah.

So he claimed then and maybe one or two other times, to have never thought about that question

before, like to be thinking about it for the first time, which I do think was, that was odd, my first thought was, is that even true? Yeah. You know, you might have thought about it, but then claimed to be thinking about it for the first time to excuse yourself and not having a good answer, that, that just seems like

a poor, argumentative strategy. I, I guess so. And I think, I mean, you know, to lie about whether or not you've thought it wasn't before as the SG John Sauer said, like, that idea, that said, I think previous solicitor general, like, pre-logger, I think, she was almost never surprised by a question.

You know, she'd been asked, yeah.

“And I think that SG's office traditionally goes through so many quite aggressive internal”

moods that, you know, the idea of him showing up and not having been asked that question before in a mood, really maybe wonder, maybe wonder, you know, they're not doing any moods as they used to, do the people who do the moods, so they are afraid to ask tough questions because the general sort of, like, atmosphere of distress, or they, I don't know, if, if it's true that he showed up at that, I mean, you know, if we're going to ask

that question, something that's gone around, which is a question that people said, you've got to expect from just a score such like, you know, this is maybe as far as we can tell the issue other than raining in, middle some bureaucrats, the issue that he cares about the most, which is, you know, the rights of native people in the United States. Yeah, I mean, now I will say the flip side is also true of the ACL user, just a spirit

asked her, you know, for the Native American exception, is it based on whether you're born territorial in the reservation, or is it based on whether you're born, you know, to parents who are tribal members, and she proceeded to ramble, link, thought, answer the question. So it just strikes me, you know, everybody knows that the sort of status of Indian tribes is one of the historical examples here and everybody's willing to handweaves to some extent

about what's going on there, but they're like basic questions about how that exception works and what the rules are for it, that you would think if you were arguing in the Supreme Court case, you would at least have figured out your position was. Yeah, I was a little underwhelmed by her performance. I actually, you know, wasn't able to log in to listen to the argument until, you know,

towards the tail end of the government's argument and then the first part of ACL

use argument and, you know, I actually came away thinking that maybe the government was on better footing based on that and I texted you and you were like, oh, you know, you messed the first part, actually, you know, it's going to the government's going to lose and so I had to go back and look at the transcript, but you know, it didn't, at that point, to me, just based on the kind of inadequate information I had, it didn't seem like a route.

Uh, yeah, I agree. And I mean, in any case, the dust is, it certainly didn't, they didn't didn't say, you know, how dare you come here and defend this on American policy or any, you know, they didn't express outrage towards the solicitor and all the kind, some of the commentary I might have been hoping for. Yeah, but, you know, there were some interesting, interesting lines in there. Um, you reposted one of them kind of without comment on your

Twitter feed. Yeah. So, so one of my favorite exchanges was, you know, what to make of the fact that illegal immigration was not really a thing in the 20th century and then it's a tree or it was later than it is a tree, but, and there are a few examples, but the, the current set of immigration problem was different. And so she just Robert said, you know, this wasn't a problem in the 19th century and so soon on Sauer said, no, but of course we're in a new world now,

a child who's US citizen and then the chief responded, well, it's a new world. It's the same

constitution. I think, so people have to be funny, but maybe a tiny bit pointed, I think it's a little pointed. Yeah, I mean, I think it's a good, I mean, I think it's exactly right, of course,

“that in thinking about constitution interpretation, the meaning is unchanged and you have to apply”

in new circumstances. Um, but the fact that it's the same constitution means you can't just assume that the constitution amends itself to contain the amendments we wish it contained in light of the world we face. Some people thought that that line was clearly prepared, like that he'd been waiting to deploy that one. I don't know if you've heard about that. And some people thought that line was clearly delivered to President Trump, but the purpose of that line was as a, you know,

I don't know about that either, but it's a good line. I don't even know. Yeah, um, I liked it. One, you seem to like it. One of my long-term projects is going to be to do a sort of attribute to the chief just, including sort of like analysis of all of his best, his best ziggers. He's got, he's got a number. Yeah, that's part of the funnel, we're figuring out which ones, you know, there's obviously umpire, it's obviously the parents involved one, and then exactly which other ones. I think there's

“it. There's a good list you could come up with. You should start writing them down now. I haven't.”

Okay. Okay. More to say about that. It seems like it does seem like that the common wisdom really has centered, you know, kind of huddled up around the prediction that the government will

lose from to the show. Steve Vladak had an op-ed in the New York Times basically in the headline

saying the government's going to lose, but then arguing that, you know, because of the cost of decision, you know, the, the whole, you know, ultimately the government is going to win in a bunch of other ways, right? The, the Trump administration will do other stuff that is unconstitutional or otherwise illegal, and here the government, you know, via John Sauer, had promised at the cost of argument that they would appeal any loss, so that there would be an opportunity

for the court to weigh in on the constitutional question, even in a world where it was impossible for courts to give, you know, kind of universal relief. But, you know, Steve's argument was, well, they didn't make a promise about that for all sorts of other issues, and so we should, we should expect to see that. New government will do unconstitutional stuff. People will sue. Maybe, you know, those plaintiffs will get, you know, judgments in their favor, striking down whatever government

action it is, but because of Kasa, that relief will only run to that particular plaintiff, and then the government will just let it go and continue enforcing the policy against other people. Yeah. Now, I, I do think it's not where the in Kasa also there was universal relief, under the lower courts, essentially a nationwide class action, using the class action exception to Kasa, so even if the government had not appealed, they wouldn't have,

yeah, any useful grounds. Yeah, it depends on how much, you know, room, you think there is in terms of the, the doors that the court in Kasa left open. Yeah, if it's becomes easy enough to get

class action certification, and to get, you know, class wide, injective relief, which is not always

easy, right? There's, there's requirements under federal rule of civil procedure 23 that, you know,

“not every pewative class satisfies. Right. Now, I think what this is a problem that also depends”

on whether you're so sure the Supreme Court will against the term administration in all these cases. Because you can imagine there are other cases where if the lower courts grant the universal relief, the court feel compelled to take them and upon taking them, there's a ten or twenty percent chance that the SG was going to pull it out, but in a world where it's not universal relief, then justice can be done in the lower courts and escape the, but for a small number of people,

right? Well, sometimes it's, sometimes, I mean, it depends on this depends on the scope of what the lower court does. Yeah, it could be not universal, but still apply to all the people who care about it the most. Yeah, so I, I don't know. Obviously, it's complicated how it all plays out, and then of course, in some places, the real obstacle are where even people who could sue are afraid to sue because, you know, with its stake, you know, and the law firms that settle

to the universities that settle, it's not, it's not that they can't get relief. It's just that, you know, they could get relief. They just don't want to sue. I guess now they don't have the ability to piggyback off of somebody else's suing and so on. Yeah. So let's accept the common wisdom that this is going to be, you know, not a five four, and if that's the case, do you think there's any pressure on the court to kind of have this come out sooner than

it'd be hard to get an opinion out, you know, sooner than the end of the term given that it's a

April, but you know, is there any urgency that the court might see in resolving this? Oh, I don't think so, particularly. I also think the court may realize this is a opinion where they're going to score some

“points. You know, they're going to do the right thing and the popular thing and I think a lot of”

their detractors want them to do. So if they were going to have any to think about the timing at all strategically, there might be some incentive to let it come out the last day of the term. Yeah. So it blunts the different actions and the destruction of the Voting Rights Act and the immigration cases, whatever else they're going to do that people we feel at? Yeah. Although if the Voting Rights Act case goes to the last day of the term, that will have taken

a very long time. Well, it's already taken a very long time. Yeah, you know, but I mean, that would be like an extraordinarily long time. Yes, likely. But whatever, you know, however it's exactly there. In fact, yes, I guess if you're at the same time saying you're going to give President Trump

for the first time, it's a consolidated control over the entire executive. You might want to

make sure that shortly after that, you could say, but don't worry, we're not giving him control over them over the babies. Yeah. I do think also before this, I think the this my view was a sort of statutory ruling was maybe more likely than a constitutional ruling. Yeah, I was wondering why that didn't get more play. Yeah, but certainly it didn't get a lot of play and there were several questions, you know, from the Justice's kind of trying to get both sides to say, no, we'd before

you decide the constitutional question. I think so they think the narrowest way to decide it was when Justice Kavanaugh floated, which was, you know, he got the SG on record saying, we are not asking for Ron Kimark to be overruled, even if you even if you read it against us. So you could read an opinion that says, Ron Kimark is against the SG's as against the executive branch. They're not asking for it to be overturned. We are not going to decide whether to return it, therefore you lose,

“and if you want to come back and ask for it to be overturned, you can try. I don't think they'll do that.”

And we got an email in the inbox from listener Jack Wilson asking, why, why did the government not say, as a fallback, you know, if that's really what one Kimark said, please overrule it. What do you think about that? I think there are some times when there's an argument that, like, theoretically would help you, like to put it on the table, but in terms of optics, it just makes you sound

extreme in an American, so it's a bad idea. Like, similarly, you know, you never ever show up and say,

you know, look, we think Brown versus Board of Education favors us, but just in case you disagree, like, we're only going to return it. Even if you make that as you're back, back, back, back, back, back, back of argument, yeah, you're willing to do the table, just like, makes it easy to dismiss you. And my guess is given that the, given that the conventional view is that the socials are going against, you know, all the history and conventional wisdom

with this kind of radical crazy argument, it would seem like slipping the mask to say, we want

“one Kimark to be overruled, especially because the truth is they want one Kimark to be overruled.”

But the truth is, all their arguments suggest one Kimark was wrong, and they wouldn't live with it because it can't be, it did be distinguished to explain down as hilarious. But, but I was, I mean, I was struck by this when I taught one Kimark last week, it's just like reading the dick dead, one Kimark, it sure seems like one Kimark has a view about this that is not the presidents. Which class re-teaching that end, you use that like a 14-dememic class?

Yeah, I'm teaching our kind of law for a 10-dememic class. Cool, yeah. How much time have you spent on the birth rates of citizenship issue in the class? One day, I mean, we're only two examples around quarters, so it, it gets a day, a day for the citizenship class, a day for the voters in the United States laws, and then we move on to equal production. How much did you talk about, you know, depending litigation?

Yeah, I mean, that we read L, we read one Kimark, and then we read the executive order and talked about all three, and then this is before the argument, so I tried to describe what the arguments would be at our argument, and I think it was pretty predictable, yeah. I'm curious to see, you know, the academic discourse about this issue has been unbelievably heated. I think more heated than the academic discourse about maybe any other constitutional

issue that's come before the court and recent years. Is that right? I mean, it comparison more so more so than the health care decision, uh-huh, more so the section three? I don't know, I mean, in terms of like seeing the kind of the Cooperative personal attacks that I see regularly on social media, yes, I feel like I've seen more than I've really ever seen in the academy,

Well, isn't the contempt kind of one way? More so, yeah, but nonetheless, you know, still, it's been striking to me. I kind of wonder, you know, what happens, you know, how, you know, if the, if the government loses, you know, how people on both sides of those debates, you know, react, obviously there'll be kind of a spike dance by the defenders of birth rate citizenship, you know, how does a, the kind of anti birth

race citizenship takes age? I don't really know. Yeah, I agree. I mean, it's, uh, it's tricky

also because, I mean, it does have this dynamic like the, um, health care case where sort of at first,

“you know, the debate was, is this challenge off the wall or on the wall?”

Like, is this sort of beyond reasonable debate or not? Which both, is there for sort of inherently contentious? If your, if your position is this is beyond reasonable debate, then people who are debating it are, you know, violating a normal reasonable debate. But it also means, in some ways, if you're the, the contrarian, you know, you've kind of now got a helpfully low bar. Like, you don't have to be right. You just have to show that it's complicated.

Now, I do think the people who did that then sort of slid from, it's, it's one that is it's complicated, which is true. It's something else to say that in the end those complications are sufficient justification to uphold the executive order, which I think is, uh, not, you know, not even plausible. But yeah, but I agree there's a sort of, uh, a toxic character to some of these debates. Do you think there's almost, I mean, how many constitutional issues do you think there are such that

if they were kind of reconsidered, there are, there are, there's no way you could say it's complicated. Because I feel like almost any issue, someone comes up with an argument, like, can the president serve three terms? I mean, people put on the table, this possibility that, you know, the, the president and the vice president could swap places and then the vice president could resign. Like, well, I guess that's, I think, I mean, there are many things that are not complicated. It's

not complicated that the president can't just directly serve three terms. I think it's also not that complicated that the president can't run for vice president, because he's not elderly president. I think, can the president, but people make that argument? No, people make, make claims that are uncomplicated, they're wrong. But I was just going to say, now the claim can the president become the

“speaker of the house and they get in the line of succession that way. That's what I said to”

get complicated. Um, but I think, I think that often happens is like the object question is uncomplicated. There's a bunch of adjacent complicated things that don't actually get you there. But you spend enough time kind of throwing up dirt over the adjacent things. Then, you know, you can kind of confuse the whole thing. Yeah, I just, I just think this is a problem with constitutional laws that if you get enough motivated smart people together in a room, you know, you can come up with arguments

for a lot of things. Uh, it's not, it's not mathematics, right? It's not mathematics, but one question,

so one question is, can you come up with plausible sunny arguments? And the second question is,

can you come up with arguments that are in objective fact, plausible? Uh, and I think there are a lot of things where you can come up with a plausible sounding argument that is objectively implausible. But that rests on our ability to be able to tell the difference between the truth about the constitution that we'll think about it. And of course, that's very hard and very contested.

“Which side of the line do you think the birthwords of the ship issue is? I mean, I think, you know, you”

think that the challengers are correct. You've said that to me. But do you think that the arguments on the other side are plausible or just plausibly plausible? Or seemingly plausible, or however you want them? I think that the fact, the defenses of the executive order are not plausible. I think there are, there are defenses of things like new legislation, though be somewhat plausible, or because you think the statutory question is not close. You know, regardless of what the constitutional question

will not just the statutory question, but the constitutional question ultimately turns on jurisdiction. And I think there's just not plausible to say it the United States does not have jurisdiction in the relevant sense over any of the immigrants in question who we regularly both give the protection of our laws to and hold to account for valid air laws. In a world where Congress did something weirder, like treat a documented immigrants more like we treat Indians or diplomats,

then you get us an complicated, like can we expand the categories? It's like it. But like the fact that that would be complicated doesn't mean this is complicated. I mean this damn way like, okay, could Congress enact a statute requiring American state broccoli every day? Maybe that's complicated. Could Pam Bondi herself go personally house to house and force everybody at gunpointy broccoli every

day? That's not complicated. The answer is no. And the fact that the broccoli question is complicated

I thought the broccoli question was supposed to be not complicated, like it was supposed to be

this parade of horrible type argument where you say the obviously not therefore, and then it kind of leads you down the path to saying the Affordable Care Act must be in constitutional

“for the same reason. Well, at actually, I think maybe the right answer is, and then maybe I”

specifically, maybe the eating the broccoli has to be broken apart from the buying broccoli, actually think. I think maybe the right answer was Congress probably can make full buy broccoli, but it can't make you eat it. Is that it would that be a substantive due process limitation? Well, also a commerce and necessary appropriate, like there are economic reasons for Congress to boost the broccoli market by effectively opposing weird broccoli exercises and direct

access or something, but then, you know, if you want a compost or broccoli rather than eat it,

what's it, anybody? I feel like broccoli is the wrong vegetable depict because it's, you know, it's out of date to say that it's a vegetable. People don't like, right? I feel like it's actually pretty popular vegetable. My kids like it. I think it's one of these things where, you know, it's a vegetable that people use to make badly. It's the only vegetable in my kids, it's consistent with like so. I mean, my kids like Brussels sprouts and Brussels sprouts were usually,

you know, in my youth, they were mocked as like the most disgusting thing. In the reason it's,

“it's because they were boiled, right? Once you roast them, they're delicious. I think it's also the”

that genetic engineering means Brussels sprouts are better than they used to be. I think they used as possible. I think they used to more bitter and they're not as bitter as they used to be. That's possible, although I do think, you know, we didn't roast vegetables that much. I mean, that just wasn't the kind of 1950s way to cook. Yeah. Look, my kids don't like roasted broccoli, to be clear. What do they, they like boiled broccoli? Microwave a frozen broccoli.

Chris Pretender, Microwave a frozen broccoli with just enough salt. Salt is key. We, maybe I think we didn't salt, salt food enough back in the day. That's probably sure. Okay. Should we talk about the, uh, the case? Uh, the actual opinion that we're going to talk about? Yeah. Chiles versus sounds are. This is, you know, kind of commonly called the kind of gay conversion therapy case, although whether it's fairly described that way is, I think, you know,

“arguably an issue in the case. Um, so, you know, lots to talk about here. I don't really know where”

to start. Other than saying, this is a Colorado law that bands, reports to bands, you know, various types of therapy that include under the text of this statute. Um, any practice or treatment that attempts to change an individual's sexual orientation or gender identity, as well as any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic contractions towards individuals of the same sex. That's the, that's the statute. And, you know,

this case, you know, seems like it's a huge culture war case, right? Which it is to some degree, and so you would expect this case to be decided on purely partisan lines.

Which it was not. This is ultimately going to be an eight to one decision with everyone except for

Justice Jackson in the majority in saying that this law is, you know, unconstitutional, because it finally free speech class, right? Yes, the first amendment. And we'll get to, we'll get to the reasons why, uh, and a second. It's interesting because I, you know, I had the same, you know, without having dug into the case, I had, you know, going into the oral argument. I was like, okay, this is going to be another, you know, kind of flip side of,

skirmati type case, and it wasn't. It wasn't. Yeah, even at the oral argument, it, you know, I came away thinking, okay, this is, this is a, this is more, you know, a stronger first amendment claim than I might have thought. And so, that's interesting. And maybe, you know, to get there, we need to explain, you know, why that was true, right? What exactly specifically was the Colorado law supposedly doing with respect to the particular plaintiff here, and why did that make it

a seemingly easy case for eight out of nine justices on the Supreme Court? Right. So, I mean, it's easiest to see also by, so just as Kagan just said on my arm, as he said, joined the opinion, and they write a short concurrence, you know, explaining their willingness to join the opinion, and to say, if Colorado had enacted a content-based viewpoint neutral law, this would be a different number of different questions. So, if Congress, if Colorado had said

something like, you know, it's not a legitimate subject to therapy to talk to young children with their sexuality, or so, I don't know exactly how you would define it. Yeah. I mean, that reading, reading that concurrence, I was a little puzzled by exactly what category of treatments they were

particular, the law, as written, forbids therapy designed to change a minor sexual orientation

or gender identity, but it allows therapy that's gender affirming or affirms identity exploration. And so, you know, in the known culture war between, I guess, you know, conversion therapy versus

“orientation affirming therapy, Colorado's picked aside. And under modern doctrine, the worst thing,”

a state can do, on a matter of speech, is to pick aside. Right? There are things that are in constitutional too, but like, but picking aside and saying this side is a lot of talking this side, it's not, it's not okay. And so, I think that makes it both easier to strike it down, and it also makes it easier to see, like, on its face the way this precedent could be helpful to progressive causes in some places. Like, it's not, you hard to imagine a red state passing a

law that also, if you point to scrub at it, it's, you know, the opposite direction. Right? Or even. Yeah. But can we just make sure we explain clearly what the plaintiff was doing and have a law was

applying to the plaintiff before we get too deep into the first member question. Okay. So, this plaintiff

was not like a psychiatrist who was prescribing drugs, doing some of the practices that came into just repute. And, you know, the last few decades, you know, the true kind of aversion therapies, right, where, you know, you would, you would take, you know, gay youth and, you know, give them drugs to make them vomit while, you know, looking at gay material, you know, kind of like stuff like a clockwork orange, classic movie where they, they convince, they make Alex,

unable to, to appreciate violence as well as Beethoven, you know, electric shock therapy, a lot of things that, you know, in retrospect, and even at the time seem quite disturbing. So, this is not what this plaintiff was doing. And so, this is, you know, the court is very clear, this is an as-applied challenge. So, there, I think that there's still some categories of things that this law is going to be allowed to forbid, just not what the plaintiff here was doing,

which is talk therapy. Uh, yes, and I just purely talk therapy and voluntary talk therapy, I guess also, because, you know, some of the kind of a verse of things could be done, you know, making you watch terrible movies is in a sense, just speech, but it's different if you

“force people watch them, then if you want to clockwork orange, they like strap Alex down and they”

like put the things on his eyes so he can't even close his eyes. Right, exactly. So, they're not doing that, it's, it's not even, it's just to be clear, it's not even like, you know, talk therapy where you're forced to talk. It's just, yeah, and so that if someone, if a client came to therapist and said, look, I, you know, am struggling with, you know, seems extra traction, I kind of don't like these feelings I'd like to talk through and figure out how to kind of see if there's a way forward or

someone had, you know, made some steps towards, you know, gender reassignment and then was interested and, you know, wanted to talk about maybe walking that back. Those would, at least as the law, see if Steve had been interpreted, although I think Colorado maybe tried to back away from a little bit, would have been forbidden. Yes. Now, and so that therapists can't have that conversation. So, so I agree that's the majority of your lies on that, that makes this seem like an easier case,

but you should it? So I guess, it does seem like there's a ton of stuff done through just speech that we do still sometimes think of in a different framework. Like if, if you were a counselor and your stick was you talked to people and convinced them to possess by demons. And, you know,

basically ruin their lives because you then came to do various things to exercise themselves

and you just all, you know, all just to talk to them, we're told them to commit suicide, right? Right. I mean, maybe we would say, okay, strict scrutiny applies and suicide is so bad that you know, you shouldn't believe that. I'm not so sure about the demons depending on what, you know, if you convince people that if you're going to spend my demons and exercise yourself, you just need to buy a membership and, you know, your most level marketing scheme or, I don't know,

or lawyers, like a lawyers do a ton of what we do just their speech. Yeah. Yeah, and if you were to if you were to, you could be disparate if you as a lawyer counseled your clients that, you know, 16 to amendment is fake amendment. You don't have to pay your income taxes, blah, blah, blah, blah, blah.

“Right. Right. Yeah. I think even if you were, yeah, I think you should be disparate, even if you were,”

yeah, even if you're honest, you said, look, then the courts have rejected these challenges, but you should know they're true, they're valid and, you know, I think you get else to trouble. So now, the court has already kind of rejected this, well, some of the path in a earlier case,

what we now call the professional speech exception to the first amendment, which I'm not sure

this is helpful framing. And so having done that, this kind of seemed to follow, like once again, Colorado is trying to sort of say, this is a form of licensed therapy that therefore doesn't get normal for some of the scrutiny and the courts already said it to the side where we're skeptical that kind of thing, but I don't quite understand under this theory what happens to lawyers. Yeah. I'm generally puzzled by that. And then, or not, what about the, yeah, what about doctors who,

you know, recommend therapies, treatments that are like clearly inconsistent with the standard of care, right? Like someone has cancer and they say, you know, you absolutely shouldn't treat it because that will make it worse, right? And they die. Right? So, I mean, are you telling me that? Can't be forbidden. Now, you could say that the, the extent there really is an objective

“standard of care, the doctor really is wrong about that's different. And that the truth is,”

this is just such a contested area, that there is no objective standard of care. I don't think the majority turns on that, though. And I don't think the court claims to be able to know what's the standard of care is, you know, and use that as a basis for constitutional law. So, it's funny, the, they've been, it is, you know, in a sense, totally reasonable, 8 to 1. But is it, is it right? I do feel like the result on these exact facts feels right to me, okay? But I do have a lot of

concerns about, you know, right? What are the limiting principles here for all the reasons we just talked about? Right. And again, on the fact it's hard to see how, like the flip side is, if you allow the state to say, you know, talking to people about whether or not they are or not gay and trying to convince them to, you know, change course in various ways. That's the thing, only doctors can do, and it's the doctors have to do by doing it our way. And therefore, nobody else is allowed to talk

about our special use on this. They're sort of consistent with our standard of care, even in a one-on-one sort of setting. That seems, you know, like a trouble in slippery slope, the same way that, you know, if you said to lawyers, you know, we can regulate the practice of law, we can regulate claims about a thing of taxes constitutional. Therefore, the state is entitled to decide what is constitutional truth and if there's been anybody lawyer or otherwise from stating anything contrary to constitutional

“truth, you know, if you want to claim the 14th of them was not properly ratified,”

that's either the unethers practice of law or malpractice and it would be disbarred for daring to say so. I mean, that obviously can't be right either. Yeah. But I don't know what, I don't know that the professional speech exception and strict need are the right framework for this problem. What would the right framework be? I don't know. I guess if there is a basis for kind of drawing a line, I, it probably does have to do with kind of taking on a client and acquiring

some sort of a fiduciary responsibility, lawyer's context to a client and, and on your context. So we'd say in some way we enter this certain kind of relationship that comes with a responsibility so you can spot your truth to the world as much as you want. But then there's it's some way when you get into a one-on-one relationship with a somebody we get to have some views where you say, even if it isn't that council and against the result here. Well, I don't know.

And maybe maybe not everyone on one relationship because again, if I, if I have a website where I talk about how we're all opposed by demons, presumably that's okay. You sent me an email. I like, even me, person with laughter and back, yes, even you. So I don't know, and again, maybe it's only a subset of relationships. Maybe it's only doctors and lawyers. All of them, what are we going to do if you're another specialist of law? So I don't know the answer. Maybe it's just a place

or modern first from a doctor and has gotten a hard to understand. Yeah, I mean, but I guess maybe

maybe those are cases where strict scrutiny applies. I don't know. I mean, it just, or maybe those are situations where this comes up a bit where there is a longer tradition of regulation that would kind of put it square put it, you know, the idea that you can, you know, say that lawyers can't give incompetent advice. You know, maybe that has a longer tradition than exactly what

“the state was trying to do here. Yeah, although I got a tradition, I think traditions suggests,”

you know, you could get mad at lawyers even for just saying the judges were bad. No, someone could dust it, but lawyers got in trouble for that all the time. Yeah. Okay, yes, so I was hoping that you had some answers here, but apparently not. Yeah, I mean,

it's a case that really gets deep into the elaborate doctrinal edifice of first amendment

and I would really like to have step back and gotten a clear answer. I mean, this, this case, and I've really, I think I've been radicalized recently about the, the length of Supreme Court opinions. I think it is utterly out of control. And this one, I mean, this one is actually not that long. I'm saying this more because there's a super long descent by Justice Jackson, but like, you know, I think we could like go back to, you know, 10 page opinions.

I'm not sure that would be worse. I mean, I just feel like there's this impulse now that, you know,

“you have to basically walk through answers to every single little argument that was made,”

and then it just ends up becoming so complicated. And that sometimes, like, if you can't step back and just like tell me a little bit more simply what's going on briefly, you know, maybe we get a little bit lost. I'm with your both counts. And I think this is a bad opinion. Like, I think this is a Gorsuch opinion. You know, I sometimes have, in the past criticism is writing, I thought this was perfectly well written. Right. I do think, I think you asked this

question on Twitter this morning is, you know, is there an inverse correlation in the length

of a descent and it's persuasiveness? And I think the answer is definitely us. Okay. I'm glad,

because I got a lot of, I got a lot of pushback from, yeah, from, from the boat people on both blue sky and X about that. But I mean, yeah, I think what, what do you think is the most famous descent of all time? Oh, uh, just as Holmes is locker descent? Yeah, which is like four paragraphs. Right. Right. Now, I was going to say, there are outliers. Like, just as Curtis is descent and dreads God is very long. And I think it's effective in part because it's long because when you, you know,

when the majority opinion is sort of nuts and full of a bunch of, like, misstatements of

“fact and loss, sometimes you need to go through them all. So if the correlation is exceptions,”

but I do think in general, right, being able to say in the descent, like, here is the crux,

here is the point, here's the never saying is much more effective. Now, I wonder if part of

the issue is our descent's written to persuade. So you could imagine somebody who already thinks the majority is wrong, like being more satisfied for longer the descent is because it's like, now you're really, really letting them have it. Yeah. Whereas, you know, maybe that long descent versus less little to be read by somebody who already agreed with the majority opinion. I agree with the majority opinion. I want to see the descent as to say, you know, give me

your best argument, but, you know, don't give me 80 pages. But, again, since descent's presumably serve multiple audiences, one to persuade people that the majority is wrong, but another to kind of like create a rallying cry or to be cathartic or whatever for people who feel like you can accomplish that goal in a shorter opinion, though. I mean, the thing

“the best way to accomplish that goal is to have some good lines in there. Yeah, right. Well,”

that the good lines, again, are more of that a persuade, are they? I think they're more likely to give people rallying cries, too. People can excerpt them on Twitter. My next. The longer it is, the more options you have to excerpt. So if you just put all your material out there, they're more, they're more buried. Well, let me ask you this question. How do you feel about director's cuts of movies? Depends on the movie. Are there any movies where the directors cut the long version

was better than the short version? Maybe apocalypse now. I'll just be about that. There's the kind of like big combined cut of the godfather. It's hard to Godfather and Godfather part two. But that version is not longer than the two original. I mean, the directors, the director, well, I think it might have some extra scenes. Directors cut of apocalypse now definitely longer. Final cut of Blade Runner. I think it's maybe longer. Okay. But like the Lord of the Rings, where you a person

thought those are better and the longer. No, I mean, I mean, that those obviously need a lot of editing and certainly, you know, the habit of turning like 200-page novel into 16 hours or whatever of the movies is totally out of control. Yeah, I guess I'm not ready to embrace the argument that

shorter movies are always better. Yeah. But I mean, I do think tight editing does help. I mean,

the director's cut of James Cameron's aliens, I think is worse. Yeah, in part because, you know, there's parts of the story that in the tighter version are kind of like left a little bit to your imagination and the kind of more you've explained in the more you show the kind of less list mystery leave in some ways. Yes, less narratively satisfying. This is Matthew Glacius, who I read a lot has this as a general theory about the spirit of movies TV. This is the thing

is in the, as TV became good, what's happened is that most TV seasons of like, you know,

movies, even when they're two and a half or three hours long, where somebody was forced to decide in advance where you're going to go, like have an arc, stick the whole thing, do it three hours, are like much better than a sort of shaggy 10-hour movie or maybe figure out the back half as you're

“going. I think that's, I think that's totally right. I also, you know, the impulse to have the story”

keep continuing into it definitely. I think ultimately makes TV less satisfying. A movie is supposed to be a complete story, right? And it doesn't have to end in a satisfactory way, but it is supposed to be a complete story, whereas I feel like TV shows are, or the opposite of that, they're supposed to want you to keep going, you know, indefinitely. Right. And it's kind of like the difference between a full and satisfying meal versus a bunch of just like high sugar snacks that don't actually

fill you up. What about like those 12 to 18 course, like tasting menus, where you got a bunch

of little bites that you never really got. Yeah, I'm over those. I did a string of those when I was

a law firm associate, and they rarely were as satisfying as I wanted them to be an often, you know, kind of like, yeah, you just kind of leave, you're still hungry, or either you feel disgusting, or you feel still hungry. It's really hard to calibrate. The, you know, Komi and DC, that was, that was, you know, those were, that was incredible, but yeah, that was incredible. Some other ones have kind of underwhelmed, especially given how absurd the expensive they are.

Right. So I guess the, in the case for and also against these long opinions is something like, look, I would be happy to include my one best argument if it was clear what the one best argument is, but either in a world where people comment opinions from so many different assumptions, like different arguments will resonate with different people, or just eye the author, you know,

“don't really know what these are going to land. So I got to put a lot there. And, and that's why”

you put it all out there, then you let, you know, blue sky and Twitter sort of zero in on the pieces they really like. You let case book authors pick, which part they think really works. But you as the justice just have to kind of give us all the legos and then let us construct the best pieces out of it. And all over what the homeless may be had enough genius that he could, you know, he could build a leg of wishing himself, but maybe we just can't do that anymore.

Maybe I'm skeptical of that. And I think ultimately, you know, rhetoric is more effective

when you, you know, kind of have to make our choices to pick your strongest points. I mean, like a two hour speech in response to something you disagree with is I think it's just going to be less effective than a really focused, you know, 15 minute oration. So on the substance, and this is the first paragraph of the Justice Jackson percent. So hopefully everybody read that if they didn't

“read the whole thing. Justice Jackson leads her to sent with, there is no right to practice medicine,”

which is not subordinate to the police power of the states, Lambert versus Gali. This was true 100 years ago, and it should be true today. So I'm curious what you thought about this line, and I'm especially curious what you think about it coming from somebody who descended in jobs in the committee. Yeah, that is a significant question I had, which is how to line this descent up with that

larger framework. I mean, I mean, that quote also, like the leave some things on answer,

like, first of all, is this practicing medicine? And is this someone claiming the right to practice

medicine versus, you know, the right to speak in the course of practicing medicine? Right, it does the police power of the states and tail the right to engage a viewpoint discrimination about which speech under the power. But I mean, if the claim is that police power extends to categorical right to regulate medicine in every way possible, yes, then both dobs and scrimmetti are arguably wrongly decided unless, you know, you, you can, you find some other, you point to some other

hook. And if, you know, you say the first amendment doesn't, doesn't work, but you substitute you process an equal production work. Right. Well, they'd be rightly decided because they came out against the, yeah, sorry. So they, you're, you're position in them, you know, the liberal position in those cases would be right. Now, is it possible that this opinion is written that way on purpose? So what it said, it contains a quote that it says,

this was true out of years ago. And it should be true today is a possible justice checks and things look, it shouldn't have been true five years ago. Five years ago, I thought we were in the business of enforcing constitutional rights, even what it's called medicine, but apparently not anymore, you know, apparently not in dobs, apparently not in scrimmetti, and given that given dobs in scrimmetti today as of this year, but not last year, and not 2022, we should go back to the police power

of you because we've already, is it possible that's what she means that she's just kind of

she reaffirms the dissent in scrimmetti. She says, of course, when the state discriminates on the basis

of sex and transgender status with respect to the administration of specific drugs, that discrimination implicates the equal protection clause and requires height and scrutiny for purposes of the 14th

“amendment. Okay, so I mean, I think maybe here's the defense I would offer if I was trying to”

rewrite this a little bit. There are some regulations of, you know, the practice of medicine or maybe the practice of health care abroad they understood because I don't think this qualifies as medicine, maybe maybe qualifies as medicine. That implicate the constitutional rights of the recipients of care, right, and that would be scrimmetti, that would be dobs, the dissents position in those cases, but there's not a right belonging to the health care provider.

Although, is that, is that a better way to kind of ground this? Well, if they health care, I mean, here the whole claim is I'm a talk therapist and I want to be able to say whatever I want. Yeah, it's interesting because famously, in many of the abortion cases, the plaintiffs are doctors

“bringing, but they are. I mean, they are asserting the rights of female patients, right?”

Right, but if the, if the, if the folkrum is going to be the difference in the rights of patients and the rights of providers, it's interesting that that's a, we've allotted that difference on the standing side.

It also, there's a debate, I think, among First Amendment scholars about whether to think of

there as being a right to listen, that's parallel to the rights of women. And if that theory requires just a distraction to think, you know, while there may or may not be a right to say these things, there's no right to hear them. That'll be a big, you know, a big load bearing move. Yeah, I guess so. I'm just, I'm struggling to come up with, you know, exactly what her theory is. I mean, I, I'm very, very long opinion. I assume right theory is there a right and wrong answer

to these questions. Like, you know, gender from in care is good and real and true. And if you oppose, is it as a bigot? And version therapy is false and bunk and a furious. And everybody who does it is a bigot. And the state is allowed to fight, you know, for true things and again, it's bigoted things. And the fact that half the country and half the court disagrees with me

“doesn't mean you're wrong. I assume that's her. Yeah. And I think I think support for that is, you know,”

if you look at the opinion, the first substantive section of the opinion part one A is basically a defense of the kind of like medical kind of, you know, policy merits of what Conorouter did here.

Yeah. Right. I mean, that that does seem to be bearing the weight. And so I feel like I never got a

clear answer in all these pages about the flip side laws, right, which are the laws that would be on, like, imagine a, you know, Alabama law that says a therapist cannot, you know, discuss, you know, you know, you need gender for me care can only, you know, urge patients to remain with their biological, the gender assigned at birth. Right. Right. Like, just, is there a clear answer to that question in here? Maybe I missed it. Yeah. I don't know. I mean, she does,

she talks about the, so Casey famously has the has a free speech holding because there was also a sort of a counseling and speech aspect that the, and the court says in Casey that it's okay to regulate some of this, like, counseling about abortion because it's in some of the power to regulate the abortion. Yeah. And she doesn't, I don't think, I don't think she takes the position that that Casey was wrong on that point, you know, although she may think so. So I could be wrong with

this and I could have been saying I missed. I think she's committed to the view that such a law would not get strict scrutiny, but it presumably would still get some kind of scrutiny at which point the court would have to decide whether or not the ban on gender for me care. That is why the interview is scrutiny or rational basis. And it would fail it because of her views and the merits. I, it doesn't say that, but that seems like the right. Yeah. Right. Wait a bad, right? Yeah.

Yeah. I just, I found this a frustrating dissense. I mean, I feel like their, their might have been a more effective and shorter argument, you know, because I mean, I do think there's something here, right? There's something here that, like, of course, the state is allowed to regulate. It has to be allowed to regulate in some way the content of medical practice, right? I mean, I do

but I would imagine, I would want it to be the case that a state could say, you know, as a doctor,

you are, you know, supposed to urge that people get vaccinated and not, you know, say that

“vaccination will cause autism, which, you know, I think there's pretty close to medical consensus”

that it doesn't. I agree. Maybe that's, maybe that's not true. Although, do you think not as to a doctor, but if you think if you were a licensed vaccine counselor, and all you did was talk to people who were debating other good vaccines, they'll wish to get vaccines to think it's clear of the state could forbid you from saying vaccines cause autism? I guess it's a little hard for me to, like, understand exactly what that role would entail, and I guess I'm just having a little

trouble with the hypos, so I'm not sure. I just make it make the person like a priest, so they

just like, they come in a lot, obviously, obviously not, it's not, you can't, no, and they can't

tell a priest what they can say, or not say, or obviously podcast. I mean, there's no, there's no, police power to regulate the content of religious advice. A podcast host who talks about wellness, you have a wellness podcast, you talk to your audience, just sort of like wellness, and, you know, what's the point? Yeah, I don't think they could forget that. Forgive that. I don't think they could forbid forbid that. Okay. But I mean, I do think that when it comes to certain forms of professional

advice, yeah, I do think the state has, in the same way that I think it's hard to distinguish from someone saying things about the law that are just demonstrably and correct and, yeah, inconsistent with the way the legal system works and not in blinds by centrist. I mean, we have to be able to say that,

“right? I agree. Like, and that's why I think for me, maybe the the most persuasive version of”

this opinion would have been the even shorter version. That's just something like, you know, on the one hand, obviously you could stop a doctor from convincing everybody they're possessed by demons. On the other hand, you know, there's a right to to be a crank on the street corner, either you're talking about the product possession. This case is closer to the, from various reasons from its viewpoint neutrality to the fact that it's talk only to the fact that it's a contested

issue. This case seems to us, you know, clearly on the protected side of the line. And, well, you know, we're going to the case. This is like, I'm up. I guess that opinion would be very persuasive to anybody, so you can see why they wrote that. This version, it's dead. Maybe it's just us. Yeah, I did get, I did get also, you know, frustrated by this descent, but because by the time I got, you know, 30 plus pages into it, you know, it was just clear to me that this is a descent that,

you know, a good editor could have really trimmed a lot of fat out of. And I sent you a red line that I did of the beginning of part four of the opinion, where there's just, I, in my seminar, we have these writing seminars, and I red line my students' papers, you know, and they, you know, they do good jobs, but, you know, there's often a lot of words that can be cut out. And this is a, this is a habit that you get into as an appellate refritor, you know, which is something I've

spent a lot of time doing in my life where it turns out you can make the same point both more efficiently and more persuasively in a lot fewer words. And, you know, man, I got, I got frustrated here, you know, it's like, and to be completely frank, no one knows what will happen now. I mean, you can just, no one, you can just say no one knows what will happen now, right? I don't need her to be frank. So I, I get frustrated. I think there are times that writing a little less

compactly could be more persuasive, their times like rhetorically or in speech, you know, there are these famous red lines that get, they get his burger dress, right, to get it down, like if you were lying, so it's not as good. But there are times that's not true. I have one other question about this case, which is actually, I don't know if you saw this, but Kristen Wagner had, as,

the Alliance of Tending Freedom had a social media post. First amendment three, Colorado zero,

and then it has pictures of the plaintiffs in masterpiece cake shop, three or three creative, in this case, you know, and sort of mix the, you know, the cake artist, the graphic designer, the counselor, three brave colorotans represented by ADF, the Supreme Court, you know, etc. etc. Is it a coincidence these are all Colorado cases? Is there something about Colorado? Yeah, that's a good question. I mean, because Colorado is not California, right? It's not the

most blue state in the country. No, I mean, arguably Colorado is the new California, but California used to not be the most blue state. Is that because all the California people have

“moved to Colorado? Yeah, that's what everybody says, that Denver is ruined by all the Californians,”

and, you know, I got a little of a solid city or something. Yeah, that was true. Denver is interesting. Yeah, that is weird. I would like to know a little bit more about what's going on out there. One other kind of amusing thing, which is that on blue sky, you know, which has

who I've tangled with a little bit, who I think is, you know, credit card court quite consistently an advocate of, you know, a very kind of progressive left vision of constitutional law. He had some posts where he just, like, literally just described what the opinion did, right? He said, the decision applies only to talk therapy, not forms of conversion therapy that involve physical interventions, and really our abuse. It does not strike down Colorado's law at its face. Actually,

it does not invalidate anything. It just holds this kind of law subject to strict scrutiny. Okay, totally straightforward, post. And then he got, like, pilloried for, for being a right winger from that by the people on blue sky. He actually, like, posted something like initially saying, like, I'm going to stop summarizing some important decisions on here as they come down. One comment has been plucked out of context of all, they're reporting misread and used to the basis of a

mean spirited pile on. I'm not going to subject myself to this. This was your golden congratulations. You know, I do think, you know, look, I am as, as you know, I'm kind of, you know, politically hard to pin down, but more of a Democrat than a Republican that's certainly true, vote Democrat. I've criticized, you know, conservative court, but it is, it is a little bit, you know, funny, Andy Graywall had, um, who I don't, you know, and often don't agree with on X, but he had a,

a funny post where he said, didn't look all the left wingers left X to go to blue sky to escape the toxicity, but it turns out, you know, they were the toxicity, a little, a little unfair, but I mean, it does say something about what these social media echo chambers are. Yes, I guess this also reminds me of the line.

I never thought Leppard's would eat my face, so I'm a woman who voted for Leppard's eating

people's faces party. One of the all-time classic tweets. Yeah. Was that was that a tumblr? Was that a tumblr post originally? I'm not sure. Okay. I know of it as a tweet, but you know, it's, it's something often screencapped. Yes. Yeah. It's interesting. I mean, like, you know, there's a lot to dislike about X. Um, you know, there's a lot of trash in my

“feed and there's stuff on there that I think I privately owned company is platform, you know,”

does not have to allow and I would prefer not allow, right? Like actually white supremacist. Speech, but I do think it is a little bit more ideological diverse, right? It's not the case that

all left-leaning people have left X. I think it basically is the case that almost no one on

blue sky is right-leaning. I don't know if that's right, but I mean, I'm just going to be that. And when I post the same thing as I'm blue sky, I mean, it's famous lib. You know, you try to try to disqualify the rightful president and winner of the real winner of the 2020 election. He was disqualified down. It's just, it's not my fault that nobody agreed. So, but it is also, I think, I'll still like the median lock professor who's kind of in the weeds and not interested

in drama or politics is more likely to be on blue sky than X. So there are just values to

“both platforms. And uh, but there is a weird, and actually, I think the blue sky thing is weird”

and that as far as I can tell, these weird unfair pylons seem to happen more to people who are not pursued as conservative. So I can post on blue sky and I got ignored because I'm already beyond the pale and beyond hope. Yeah. But then Nick Bagley says something and people will like turn on him in weird and unfair ways. So it's, yeah, which sort of happened to me and like sort of happened to me with respect to, you know, Stern, which I got, I know, because I felt like he

was substituting me for not being, you know, sufficiently devoted, where I was kind of criticizing what I saw as bad arguments on the left. I mean, which honestly do frustrate me a lot more than bad arguments on the right. I mean, I feel like, you know, bad arguments on my side, I really dislike because they make the views that I like less credible. Yeah. And, you know,

“which is honestly kind of why I find just this Jackson a bit frustrating sometimes because I”

feel like she could be more effective than she is. You know, like, if, if, you know, somebody on the other side is going to be an effective, I mean, like, maybe I can live with that. Yeah. My suggestion, Dan, is to just try to make yourself sufficiently sort of notorious and full of bad takes that everybody is pleasantly surprised when, you know, it's not as bad as they thought and

people else are going to finally get one right. Yeah. Well, I have to, I have to kind of invest in

Yeah. You've become more selective about social media. I mean, I do, I do like, I mean,

I miss the old Twitter. I do like these platforms, although it is not lost on me that, you know, in many cases, I mean, there's many ways in which these platforms do make people's work more visible, you know, they've posted an in Julia, Narako have a percol paper saying it, you know, Twitter use, you know, does boost citations to scholarship. But, you know, in balance, you think about it, like, for any given law professor who you've gotten to know better via social media has their social

media usage, one average increased your perception of them or or decreased your perception of them. And it's probably the latter on average, which, you know, maybe should make me more conscious

about stepping into the fray. Yeah. I do think, uh, while social media has corrupted the brands of

many law professors. It's maybe not as bad as it's corrupted the brands of many judges who are not on social media. But, uh, right things that go viral on social media and sometimes make you worry that they know if they're going to file social media and want to go viral on social media. Yeah. It's like this. Yeah. The Lawrence Van Dyke, you know, opinion, which we're not going to discuss without, you know, losing our,

“I try to keep the episodes clean. I think the pile of that opinion is unfair. I mean, I would”

prefer that judicial opinions not stoop to that level of vulgarity. You know, look, if you don't know, and I'm talking about listeners, just Google it. Okay. I took as a share of what you Google.

Well, I mean, if you Google. Yeah. I took the position that the rhetoric that kind of vulgar

rhetoric that he used in that case, which is about a Washington law that as interpreted was requiring a spot to admit people to this nude spa who were biologically signed mail at birth and had not undergone physical reassignment surgery. I took the position that that kind of rhetoric, you know, vulgar rhetoric was ineffective in terms of, you know, if your goal was actually to get the decision reviewed by this from court and overturned. I mean, it's maybe it's totally effective if your goal

is just to get more publicity for yourself, but I don't think it's, you know, then it becomes, it becomes the case about the vulgar rhetoric and not, it almost like, you know, distracts people's

“attention from the actual underlying issues. Yeah. I mean, I think the court probably won't take it,”

although I'm not sure, and I don't know what the causal relationship is, but, you know, um, okay. Well, I think, um, I think that's enough for now before we go in for too long. We, we had ambitions going in. We rose to those ambitions. I think we, we hit the things we intended to think at to hit. We only give ourselves two things, and that was sufficient for recording session that is now stretched on well beyond an hour. And I'm satisfied. Hopefully the listeners are satisfied, but, um,

they did, they did get a very short episode. Yeah, uh, previously. It was a 37 minute episode. We had a very tight window, um, with a full day of activities for the wash-hued-minute students. So, well, now I've got a little bit more, you know, relaxed, studio-paced director's cut. The director's cut of this podcast would, would not be great. It would just be a, it would be, it would be, uh, there's a lot of, like, long pauses were one of us says something, and then we're,

like, wait, is that, is that true? And then we're, like, typing and like, checking in, or we're one of us, you know, says something that's not quite right. And we have to say, you know, uh, you know, Peter or editor, can you, can you fix that? So, there's not a lot of good stuff that left on the cutter cutting room floor, so to speak. Now, but I do think one of our most popular most downloaded episodes of all time is one of our longest, like we have a, you know, multi-hour

doves and proven episode, uh, that begins to take on, you know, a lot of, you know, a lot of, it's not, it's not because of the length. How long was that episode? I forgot, it was long. Okay, but I mean, that, I mean, that was the most high-profile, you know, decision and years. I mean, our, our, um, episode about the tariffs case, also as a ton of downloads, you know, yeah.

“But I think there are a lot of places you can go if you want concise, focused, you know,”

world discussion of sort of opinions. And there are fewer places you can go if you want rambling, unedited sprawling discussions, you know, a long, leading up. It often, like skip key

like, what the case was about, yeah, in what it held. So maybe we shouldn't be

white. So I feel like, I feel like we hit it, uh, find this time, right? You were kind of going

“often for some of the doctrine. So can we at least, like, say what the case is about first?”

I'm just saying, thanks. We'll, we should, we need to be a little easy on the distances. They just, uh,

they're right. Like we podcast. Uh, we have editors, right? Uh, I would, I would, if, if one of the

“justices wants to hire me to just redline their opinions, I will do it. I will do it for minimum wage.”

And I will make those opinions more effective. I love editing. Fair enough. I should hire you that

of my articles. Any time. Okay. Thanks very much for listening. Thanks very much to our partner,

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podcast app, visit our website divided argument.com for transcripts of the episodes, blog. divided argument.com for commentary from the wider divided argument universe, store. divided argument.com for merchandise, send us an email, pod at divided argument.com and leave us a voicemail, 314649-3790. Thanks to the Constitutional Law Institute, for sponsor, all of our endeavors, as well as the intercishary elements part.

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