Sarah Isger

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. We are together to discuss the end of the term. Yes, we got birthright citizenship. Yes, Donald Trump lost and it was 194 pages.

David French

Ugh.

Sarah Isger

We also got the transgender athlete cases and the party coordination with candidates cases. So much to break down, David. This was a busy term.

David French

Can I begin with a pre apology? Okay, here's our pre. My pre apology. Hundreds of pages, dense writing. We have not been able to digest them all. So there might be a chance, however slight, listeners, that we get some of the details wrong on some of the concurrences, dissents, majority we're processing. If we get something wrong, please tell us and we'll try to correct. But this is real time, guys. We're processing on the fly.

Sarah Isger

And if you would like to write a newsletter for SCOTUS blog and you have had a federal appellate clerkship and have worked in in high level commercial litigation, send your resume over to scotusblog hedispatch. Com. We'd love to talk to you. And if you want to get the Advisory Opinions newsletter, head on over to the SCOTUS blog website and sign up for the AO newsletter. You get the video, you get the summaries, all of the things in the newsletter for every episode. So without further ado, let's do this. Well, David, I think we have to start with Trump v. Barbara. This is the birthright citizenship case, in case you've been living under a rock, in which case I don't know why you're listening to this podcast. Donald Trump, on his first day of office, signs an executive order redefining birthright citizenship, in short, not to include someone who was born on American soil, but to neither parent being a U.S. citizen. And, and we have the decision. It is 6:3, or maybe more accurately, 5:1:3 on some of the questions here. We have six justices though, saying that Donald Trump's executive order does not fly and three justices saying that it does. So that's the six. Three. But five justices saying that the executive order violates the 14th Amendment, that the birthright citizenship clause, all citizens born in the United States and subject to the jurisdiction therein are citizens of the United States and the state in which they reside, means that neither Congress nor a president for executive order purposes can change that. That means someone born in the United States, except maybe to diplomats kids. Justice Kavanaugh is saying that he thinks the 14th Amendment actually does leave open that possibility, that it's A much broader understanding of what it was allowing Congress to potentially do and define. But that Congress, when it passed a statute, you know, in the 1950s, it actually was doing birthright citizenship for anyone born here in the United States. So a president cannot change that through executive order, but that Congress could. And then of course, you have three justices, Thomas, Gorsuch and Alito. The rise of my 333 from the ashes once again, saying that, yep, they believe that this doesn't violate the 14th Amendment, that Congress didn't say anything differently, and that this executive order would be totally valid. David, initial thoughts and feelings.

David French

Well, first, just like the New York Knicks, you cannot count out 333. It was on the ropes. It was down 20 in the fourth quarter. And here it comes back, another thing. Wow, were we wrong? We spent the last part of the podcast saying, okay, we've got Justice Gorsuch upholding birthright citizenship for sure. And now how do you count to five? And it turns out that he was in dissent. You know, a couple of top line things. One, obviously the 63 is sort of the top line takeaway, but I wonder if the more enduring takeaway is 51 3. And that the reason why I wonder if 513 is the more enduring takeaway is I honestly wonder if. Sarah, we now have one of our new court litmus tests. In other words, how? You know, for many years the centerpiece of especially the social conservative world was Roe v. Wade. And so the litmus test, and for social liberals as well, both had very different views. So the litmus test for years and years and years around judges was what's their thought on Roe v. Wade? And I wonder if the core of the new right is around immigration more than abortion, if the new litmus test going forward will be what about birthright citizenship? In part because it's so close now it's five justices. So let me ask you this. Is this an issue that kind of recedes now that it lost, or is this an issue with enduring resonance where you might see some litmus testing?

Sarah Isger

I think expectations matter in politics. They may be the only thing in politics, by the way, but they clearly matter in Supreme Court world too, because I'm not sure now that we have the 194 pages, by the way, the majority opinion only 50 pages. So three quarters of the 194 pages are not the majority telling us what they think about this. Again, if you want to go off on some rabbit hole about Sarah saying there's too much writing just overall, and then Way too much sort of separate writing. This is my new poster child. 194 pages. We were wondering what was taking so long and why it would come out on the last day. Well, we have our answer. It's just so flipping long. And this whole thing has to be site checked, spell checked, all the checks in between. So, yeah, I'm actually, I guess, surprised they got it out at all. But, David, I think this takes us to, like, a bigger question. Is this even the most important decision of the term? Like, when we, you know, in five years look back on this term, will we actually say that tariffs was more important than this? Again, I get that it's 194 pages, but. But if the majority opinion's only 50 pages, that makes it actually one of the relatively shorter majority opinions of the term. With some very lovely, sweeping language from the Chief justice on the majesty of American citizenship. But frankly, it was kind of a, you know, yep, 14th amendment. We're gonna look at some precedent, we're gonna look at some history, but at the end of the day, the words say what they mean. And, like, we're moving on, guys. And in that sense, because the majority and really the dissent don't grapple with that distinction of executive power versus Congress. It's really just about the constitutional question. I don't know that this decision is going to matter much or be cited much. I could be very wrong about that. But to your point of it being a litmus test, the expectation was that Trump would lose this case. Then Trump lost this case. I don't know. Maybe everyone's going to focus on other stuff.

David French

The only reason I say litmus test is because it was close. So in other words, if you had a seven, two, if you had an eight, one, I think the issue's done. It's just dead. And then you've got people saying, well, if only the Supreme Court were nine Clarence Thomases. And then it's sort of wistful. But with five, do you say, okay, well, you know, if we're thinking about and selecting the next Republican appointed judge, are we going to be looking at the universe of people who wrote and have written law review articles in favor of birthright citizenship? Are we going to be looking for people who wrote against birthright? So I'm thinking of this from a political standpoint. I think from a legal standpoint, you're right that tariffs was more important than this. I still think of tariffs as not just the most important case of the term, but maybe the most important case of the last 25 years for essentially the very nature of the republic that we live in. But had this one come out the other way, it would, it would eclipse tariffs. I think the thing, one of the differences is neither one of us, almost every serious court watcher never saw this coming out any other way than it did. And to the extent there's any surprise here, it is the margin. And my question is, does that close margin change these stakes going forward?

Sarah Isger

Okay, so a couple things on that one. Kavanaugh is still saying that Trump's EO doesn't fly. So in order for this case to matter, even if you did flip one vote, you would also need an act of Congress. Republicans don't have that right now. They're not even close. It hasn't even really been proposed in any serious legislative fashion. I know that there's been bills that have been written, but, like, we ain't there yet. So I don't know why you'd focus on the court instead of Congress. Congress would need to pass that law first. But there's also this, if you will, four problem, which is that you keep losing Gorsuch or Kavanaugh, Barrett and the Chief, basically, if you're on that side of the spectrum. So you've got to replace at least two of them to stand a chance of winning these. Needing to replace two justices for your side is a high order of business. And especially when Thomas and Alito, your solid votes, are the next ones most likely to leave the court, then Roberts. Okay, so you need to replace Roberts to win some of these cases, but that only gets you one. Now, you've got to replace, you got to both replace Thomas and Alito, not just with justices who are checking the box on birthright citizenship, but on whatever the next issue is 25 years down the road. I mean, what Justice Thomas is a 1991 justice. Justice Alito is a 2005 or 2006 justice, 20, 30 years on the court, you couldn't have known that when you were appointing Justice Thomas that the issue would be birthright citizenship. So the idea that you're going to replace Alito and Thomas and you're going to nail it in terms of what the issue will be a quarter century from now and that you're going to replace Roberts and check that box correctly and you still gotta replace one of Barrett, Kavanaugh and Gorsuch. I mean, no, I think that's not a realistic thing to work on. What it is a realistic thing to do, I suppose you're right about, is to complain about weirdly though, the main complaints we've seen so far, and it's, you know, the night is young, as they say, it's been all about Justice Barrett and about the betrayal of the quote unquote, DEI hire and making it all about this gender issue, when in fact Gorsuch and Kavanaugh have also both ruled against Donald Trump in various cases consistently, not always on the same side. But I just don't see the level of vitriol against them. And I can't figure out why it would all be against Justice Barrett except for the very obvious difference between the three of them, why one of them doesn't look like the others.

David French

So yeah, I mean, one of my first thoughts when I saw the 513 alignment is justice Barrett is going to catch hell from maga, not Justice Kavanaugh, not Justice Roberts. I thought very specifically Justice Barrett. And then it was Justice Barrett who was a deciding vote in the Mississippi election day case. And so again, Justice Barrett is getting an enormous amount, but she's not acting alone. The only thing that I can think of, aside from your obvious explanation, Sarah, which also dovetails with all the failing cabinet secretaries in the Trump administration, Kristi Noem and Pam Bundy are gone and Pete Hegseth is still like bench pressing his way through, I suppose. But the only other thing that I could say, aside from the very obvious top line conclusion, is that it was a all hands on deck moment to push her through at the very end of Trump's first term. And I think there might be a feeling of like, we went to the wall for you, you need to deliver for us and specifically from maga, that MAGA went to the wall for you and you need to deliver for us. And that's just fundamentally misunderstanding what is a judge, what is a justice. And so I would say that's the only thing I can think of other than your relatively obvious top line conclusion.

Sarah Isger

By the way, I've already gotten something really wrong on this podcast. I said it was 50 pages of majority. Nope. That included the concurrences. The actual majority opinion written by the Chief justice for the court was 26 pages.

David French

Well, Sarah, and this would make be a great way to introduce the talking about the opinion itself. When your focus is text, it's shorter. When your focus is history, it gets a lot longer. Longer because then you have to have that giant drawn out historical fight over the incredibly complex, messy history of a giant continent sized democracy over 250 years. And that's where it gets really long and really agonizing but if you're centering around text here and plain meaning of words on the page, this is a much easier case in my view.

Sarah Isger

All right, you were right. Let's get to the opinion here and I'll read from the end of the chief's majority opinion. Again, I'm on page 26 of what will be 194 pages of opinions. All right. Again and again the dissents cast the common law as, quote, feudal, quote, medieval, a remnant of, quote, the darkness of the Middle Ages. That was not the view of the Reconstruction Congress where the dissents see feudalism. The framers of the 14th Amendment saw emancipation by the time of the glorious revolution in 1688. In fact, the tie created by birth was less a duty than, than a right. The foundation of an ancient liberties of freeborn subjects. That is why Blackstone described the privileges owed to the natural born. That is why the colonists demanded the rights of Englishmen more than 250 years ago. And that is why abolitionists lauded the ancient and universal rule of citizenship by birth alone as an ordinance of heaven. Citizenship, then and now was the right to have rights to freely participate in our political community. The framers of the 14th Amendment extended that promise to every freeborn person in this land, citing the congressional debates. We keep that promise today. I mean, there's not a whole lot more to it. They basically the text, the history, the precedent, and we're done. And Again, it's only 26 pages. Everyone can read this very easily. The chief, if nothing else, is a very clear writer. So. So I commend it to you. Although again, I don't think the writing in this decision matters a great deal. There's no like secret turns or tricks. Frankly, not a whole lot for a podcast to cover.

David French

Yeah, the majority opinion is very straightforward, just very straightforward. It is text. What does subject into the jurisdiction thereof mean? And there it has elements of history, but it doesn't depend on history. And it has a lot of discussion of precedent. This is much more my understanding of sort of orig, the way you do original public meaning, which is we got the text and if the text is clear, we don't have to do much other work. And if we, especially if we have a relevant precedent that buttresses the text. So here you had the text and you had a quite on point relevant precedent that buttressed the text. And the argument against all of that really was a double bank shot historical argument like Justice Thomas uses. And we can dive into that. It's a very befitting Justice Thomas It's a very rich, dense opinion, very thoughtful, very interesting in my view, super wrong because of text. But I think that this is very indicative, Sarah, of some of the warnings that we have raised over the de emphasis of text in the originalist project. And it felt to me like a very originalist opinion, the Chief's opinion.

Sarah Isger

Okay, then we have a concurrence by Justice Jackson, with whom Justice Sotomayor joins. This was a bit of a a tweak, if you will, to Justice Thomas. I write separately to respond to some of the themes in the principal dissent. That is Justice Thomas's dissent. Despite his long standing endorsement of a colorblind Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race conscious remedial measure relating only to freed slaves such as Dred Scott and those who shared with them certain characteristics. No other homeland called America home. It is for this reason, he says, that children who were born in the United States but to parents not domiciled here, are not entitled to claim birthright citizenship. But that narrow vision of the 14th Amendment bears little relationship to the history of its ratification. Even worse, Justice Thomas telling elides the entire point of the Second Founding. The Reconstruction Amendments were an anti caste, anti subordination reset for the nation, not a mere spot treatment for the dark stain of slavery. David, there's actually a lot to unpack in that paragraph. There's a, of course, Justice Jackson's general dissent from the majority of the Court's reading of the 14th Amendment that it was trying to create a colorblind America and a colorblind Constitution after decades of slavery since the Founding. I think that is a fundamental and really interesting and debatable and not obvious question that divides liberals from conservatives right now. Was the 14th amendment meant to now have a colorblind Constitution or was it meant to create a remedial Constitution to try to fix, not just end slavery, but to fix the badges and incidents and problems caused by slavery that of course we don't do. Instead we do the sort of opposite with the Jim Crow era moving through until the Voting Rights and the Civil Rights acts of the 1960s. Okay, that's number one, this fundamental disagreement. Number two is this idea of the very the narrowness of Justice Thomas's dissent here in this case. Right. Was it a spot treatment that the Citizenship clause and it's really only meant to apply to slaves? Look, Justice Thomas walks through the history and he has some receipts on this. Right? Of course there were these massive exceptions to the Citizenship clause right after it's passed Native Americans on tribal land, diplomats. Then we get to Kim Wong arc, you know, decades after the 14th Amendment. So there's the more specific take on the citizenship clause itself. Again, I don't think the citizenship clause is coming up again anytime soon. You kind of disagree, and I could be very wrong on that. But the purpose of the 14th Amendment just keeps coming up. Oh, it's affirmative action. It's the Voting Rights act and gerrymandering and racial gerrymandering. It's even the trans athletes case. All of this is about what is the purpose of the 14th Amendment. We're not going to be done with that debate anytime soon.

David French

No, we're not going to be done with that debate. But I think that Roberts, with the Jackson modifier, has the better of the argument here, because one of the fundamental problems with, in my view, the Thomas version here is that, yes, it's quite obvious that the intention of the 14th Amendment and the 13th and the 14th and the 15th Amendments was to provide citizenship, to provide equal citizenship for freed slaves. Absolutely. But the language is not exclusive to Friedman. It's not. It's very broad language. And so regardless of whether you can pull out receipt after receipt after receipt of some people in the legislature saying, oh, this is all about Friedman, the language itself, the words on the page are broader. And Justice Jackson also has a lot of receipts about why the language was broader and there was deliberate intention for it to be broader and that there was other words that could have been used that were certainly known to them at the time that it would have made it much narrower. And so I think the broad reading where I agree with Justice Roberts is this is a colorblind Constitution on its face, where I agree with Justice Jackson is there were absolutely people had race in mind when they created the new colorblind reality in 13th, 14th and 15th Amendments. And so both of these things are working at the same time. But this was a lot more on their face. These amendments are a lot more than freedmen receive equal rights and equal citizenship. It's a lot more than that on its face. And anything that sort of goes back and tries to argue, well, that's what the originally was supposed to do. Well, then why is it not in the text? And this is what you, you know, again, going back to sound originalism, the text has to be element 1, 1A, 1B, 1C.

Sarah Isger

All right, let's move to Justice Kavanaugh's concurrence. This is, in fact, just concurring in the judgment that Trump's executive order fails, but it is dissenting in terms of the interpretation of the 14th amendment. This is. I mean, I said that this was my take, although slightly different. I would have just reserved the 14th Amendment question and not answered it at all because I think it's hard and why would I get to it? And I would have just answered it on the statutory language. So I concur and dissent in part from Justice Kavanaugh's concurring and dissenting opinion. Let me read you the part that I think is most important. Initially enacted in 1940, section 1401 of title 8 provides that persons born in the United States and subject to the jurisdiction thereof shall be nationals and citizens of the United States at birth. That statutory language mirrors the text of Section 1 of the 14th Amendment, which was ratified in 1868 and similarly provides all persons born in the United States and subject to the jurisdiction thereof are citizens of the United states. This court's 1898 Kim Wong arc decision interpreted subject to the jurisdiction language of the 14th amendment. That decision adopted a general rule of birthright citizenship for those born in the United States with four disparate exceptions for children of foreign sovereigns or their ministers or born on foreign public ships or of enemies within and during hostile occupation of part of our territory and children of members of the Indian tribes. Importantly, the Kim Wong ARC decision treated those four exceptions as a closed set for constitutional purposes, meaning that Congress could not create other exceptions to birthright citizenship, although Congress could eliminate one or more of those four exceptions. In 1940 and 1952, Congress employed the exact language from the 14th Amendment subject to the jurisdiction thereof incomprehensive new immigration and naturalization laws that provided for birthright citizenship. Because 1401 A uses the same language as the 14th Amendment, the statute has long been interpreted to adopt Wong Kim Ark's general rule of birthright citizenship subject to the exceptions identified in that case. If Congress in 1940 or 1952 wanted to create new exceptions and thereby test Wong Kim Ark's statement treating the four exceptions as a closed set, Congress presumably would not have repeated the precise language that this Court had interpreted in Wong Kim Ark to contain only those four exceptions. Stated more doctrinally, Congress must be considered to have adopted also the construction given by this Court to such language and made it part of the enactment. Another clear statement rule for Congress, David, that basically was we presume that Congress is aware of Supreme Court decisions and that if it wants to supersede a Supreme Court decision or abrogate a Supreme Court decision, we would expect them to speak relatively clearly in doing that. If they do not, we will presume that they are statutory. No, there's another word for that. But anyway, that they are simply adopting what the Supreme Court decided when using the exact same language. Now, he then goes on to say why he thinks the 14th Amendment does provide for a much more expansive choice for Congress and that Wong Kim Ark is not controlling on all of that. But on the statutory stuff, I am so there with him.

David French

Okay? I would be there with him if it was court has interpreted a statute and then Congress doesn't change the statute. But if it's the court interprets a constitutional provision and then Congress doesn't challenge the Court's constitutional interpreta. That's where I'm sort of losing the plot here. Because if the court has adopted a constitutional interpretation, then that's going to trump anything that the Congress would enact in contradiction to it. So if the Congress's assessment is this is what the 14th Amendment means, and so therefore we're enacting this, I don't get the reasoning that the Congress's failure to add additional elements that it would have thought were unconstitutional has anything to do with it.

Sarah Isger

Ah, I'm so glad you said that. It would not if we were talking about a different statute, but because we're talking about an executive order. A president can only act within the bounds of a congressional statute. Therefore, like let's, you know, simmer this down a second. You have subject to the jurisdiction thereof in the 14th amendment, and you have subject to the jurisdiction thereof in this congressional statute. Intervening between those two is a constitutional decision from the Supreme Court. So do we think that the statute means something different, even though it uses the same language than the 14th Amendment's language? My answer is yes, because by that point, it was quite clear we had had 80 years of birthright citizenship. So maybe an easier way to think about it is not to think about the Supreme Court's decision at all. But when Congress uses the subject to the jurisdiction thereof language, even though it's identical to the 14th amendment language, it also was based on 80 years of having birthright citizenship. Therefore, we presume that if they wanted to change birthright citizenship, they wouldn't have just adopted the same language that for 80 years was guaranteeing birthright citizenship. Therefore, a president cannot act outside of the statute. He can only act within it. And so what Justice Kavanaugh is saying, again, just on the statutory part, Congress is free to enact a new law now. They can now, you know, expand or change that definition of birthright citizenship. And then a president can enact that change through executive order. But a president cannot change Congress's definition of birthright citizenship in an executive order. How do you. I can't believe you don't agree with me on this.

David French

I think we're talking past each other. Because what Kavanaugh is saying is that the fact that Congress read Wong Kim, Arkansas and then enacted a statute that had the exact same language the Supreme Court interpreted in Wong Kim Arc means that Congress was consenting to Wong Kim Ark when it did not have to. And I don't understand that.

Sarah Isger

Oh, you're just saying it'd be so, like, Congress isn't going to contradict the Supreme Court. They felt trapped by the Supreme Court.

David French

They felt trapped. This is not.

Sarah Isger

That doesn't matter for our purposes, though.

David French

But it matters a great deal when he's saying that when I'm interpreting this statute, that if he's going to argue that Congress could have done more because the 14th Amendment, he disagrees with Wong Kim Ark. That's a whole separate thing. But to argue that the fact that Congress wrote a statute with the same language as Wong Kim Ark means that Congress could have done more but chose not to. I don't. I guess I'm losing the plot here, because if Congress felt like it was constrained by Wong Kim Ark, the fact that Congress didn't add additional categories is irrelevant. It has no bearing on this conversation at all. And why would it be relevant for additional Congress to sort of say, well, no, we disagree with Wong Kim Ark and we added new categories?

Sarah Isger

Well, guys, our hive mind is totally broken down. Yeah, I don't understand David or David doesn't understand me, or neither of us understand Justice Kavanaugh, but we're going to move on and leave you guys with,

David French

you know, whatever that was.

Sarah Isger

David, is there anything from the dissents? We do have several of them. We have a dissent from Justice Thomas in which Gorsuch joins. We then also have Alito and Gorsuch filing separate dissents. Anything in those. I mean, they're very long. And we can presumably get to them later if, you know, in other podcasts if need be. But the point was, the 14th Amendment is this is Justice Thomas's point, at least, is about domicile. And so if your parents are not domiciled here, then the children of those parents is not domiciled here. I guess that's the very simplest way of showing where it falls apart for me. The parents may well not be domiciled here. I think that's not conclusory or not, maybe even relevant to whether the child is domiciled here, but because the child was by definition born in the United States. Again, I thought based on the statutory language, for instance, in not getting to the 14th amendment, there really could be some interesting statutes, for instance, to pass. And by the way, maybe there still could be on someone who is here on a one month tourist visa who comes eight months pregnant and has no intention of staying and is going to fly back with their child, then the child doesn't have an intent to domicile here either. But if you've been an illegal alien in the United States for 20 years and a child is born here, I think that child is domiciled here regardless of whether the parents are domiciled here. So the domicile argument to me was not very persuasive.

David French

Yeah, hive mind restored. I'm with you. And I think another thing that made it not persuasive is that the concept of domicile is, was not an unknown concept in 1868 and it is not the word used in the Constitution. The word domicile is not there. So once again, I sometimes feel like we're, I'm almost a broken record on this point. And that is if you have language, if you have words on a page and then your argument is going to depend on a different word on different pages that are not there, I think you're behind the eight ball on that. And that's what I just kept thinking about that because this was a domicile argument from Thomas for Paige. After page after page after page. This sort of begins with them stealing a base to say subject to the jurisdiction thereof is basically synonymous with domicile. But if this distinction is so critical, why is domicile not used? So I'm with you on that. And I'm very curious. Are you thinking about Gorsuch when you say it's really 512 1?

Sarah Isger

Well, if you're thinking about Congress passing a statute on birthright citizenship, Gorsuch agrees with Thomas's dissent. Alito writes separately, Gorsuch writes separately. Kavanaugh writes separately on the constitutional interpretation as well. And I don't think those all sit on top of each other perfectly in terms of what the 14th Amendment did mean by subject to the jurisdiction thereof. And therefore Congress is in a bit of a pickle if they did think that they had four votes to, you know, pass a statute and all they needed to do was pick off one more. That being said, I think my example is a really interesting one because it's the sort of narrowest version. You know, someone who comes on the one month tourist visa, has a child, has every intention to return to their home country, therefore the child was not intending to domicile in the United States. I think Congress could still pass that statute and it would not be flouting a Supreme Court decision. I think it would be testing what the majority and the dissent said about what the 14th Amendment allows Congress to. Again, can't do it through executive order. Don't want to hear it. But could Congress pass that law, David? And you wouldn't say, oh, look, the Republican Congress is ignoring, defying, you know, whatever horrible words the Supreme Court.

David French

Yeah. When I get to the Gorsuch dissent, which is very interesting, it's short, but this last bit is very interesting to me. Or not last bit, you know, it's towards the end. He says, by definition, temporary visitors to this country do not choose to make a permanent home here and their children thus cannot claim the privilege of citizenship because the executive order is lawful, at least to this extent. Respondents facial challenge must fail. So one of the questions, he's joining Thomas, but then he's also carving out this one particular area about temporary visitors. And I think that is the hardest call of them all is the temporary visitors. I think if you're talking about, you know, people here on visa, overstays, people here, illegal immigrants, people who are attending to domicile here to go back to Thomas, to me, that's the easy call. I fly in for a long weekend and give birth and leave. That's the one. No, I'm with you, Sarah. I would not look at that as a Republican Congress defying the Supreme Court. And in fact, if you wanted to see a really interesting Supreme Court case, that would be a fast, much more fascinating discussion to me historically and on every ground. It would be legislation targeting, you know, birthright tourism.

Sarah Isger

This was always my beef with this case. It never should have been an executive order, and it never should have been this expansive of one. If Donald Trump's executive order had been this narrow about birthright tourism, it would have actually been a much harder, more legally interesting case because now we're dealing with those 1940 and 1952 statutes. Ooh, that's much harder to say whether the executive order actually is just implementing a understanding of domicile, because domicile, the way I was taught it, is where you intend to stay, where you intend to be. So, for instance, I live in Virginia right now, but I am leaving for Texas. Am I still domiciled in Virginia for the next week? Ooh, that would be an interesting property question. But you know, the second I have moved to Texas, well, my husband is domiciled in Texas. Cause he certainly intends to stay. But what if I really miss Virginia and I intend to go back secretly in my head? Where am I domiciled anyway? Those are domicile questions. This like constitutionalization of domicile versus the common law understanding of domicile. Kind of a mess. Yeah, David, let's go to trans athletes next after this break. Aren't we all drawn to brands that care about how something is made, not just how it's marketed? And that's one of the reasons I'm impressed with Brooklyn Bedding. We just got a Sedona Elite from Brooklyn Bedding for our guest room, and it's been quite the upgrade for our guests. It feels sturdy and supportive, the kind of mattress that's clearly built to last. Every Brooklyn Bedding mattress is carefully designed and assembled in Arizona, cutting out the middleman while focused on craftsmanship at a fair price. With cooling features, 120 night comfort, trial and award winning designs recognized by CNET and Wirecutter, Brooklyn Bedding is an easy choice for better sleep. Go to BrooklynBedding.com and use promo code ADVISORY at checkout to get 30% off site wide. This offer is not available anywhere else. That's brooklynbetting.com and promo code advisory for 30% off site wide. Support our show and let them know we sent you after checkout. BrooklynBetting.com, promo code ADVISORY. This episode is brought to you by Starbucks.

David French

That is fire. Whoa, that's good. This might be the drink of the summer.

Sarah Isger

Okay, I like this one too.

David French

I'm rocking with it.

Sarah Isger

Okay, try it for yourself. Starbucks refreshers concentrates are coming home. Find them in the coffee aisle and make it yours. Okay, David, we are on the trans athletes case. This is a traditional 63 decision along ideological lines. Justice Kavanaugh writing for the majority that, yes, the 29 states that have bans on transgender athletes participating in women's sports are constitutionally acceptable. We also had a concurrence from Justice Thomas and a concurrence from Justice Gorsuch. And then, of course, the dissenting opinion. David, to me, this is an appetizer of a case and frankly, an appetizer of a decision. So much of this decision to me seems focused on the next set of cases, which are the 21 states that allow transgender athletes to participate in women's sports. And the question for that next case that may in fact come next term actually will be whether states must ban transgender athletes from participating in women's sports because of Title 9. So, right. This is the constitutional question under the 14th Amendment, may you ban trans athletes? The next case will be, must you ban trans athletes under Title ix, which entitles women equal access to educational opportunities, including sports opportunities? We talked about the 2nd Circuit decision that was then taken on Bonk. But the initial panel decision was like the craziest thing I'd ever read. It said Title 9 only guaranteed women the ability to compete, not the ability to win, which of course would turn Title 9 on its head because that would mean that women just needed to be able to allow to play men's sports like, you're welcome to play on the men's basketball team. I mean, you won't make the team and you can't win win, but you were able to compete for a spot on the team. So see, we've met Title nine. Okay? So that's the fight to come. So so much of every single part of the majority of the concurrences, and most of all the dissent is about the next case. It's about Title 9. Because once you decided in this case that the 14th Amendment doesn't ban states from banning trans athletes, that it allows states to ban trans athletes, we didn't need to get to Title nine. And yet so much of this decision is on the interpretation of title nine. Big picture thoughts.

David French

So it's 6:3, but it's also 9:0. So you have concurring in parts of the judgment, which interestingly are around Title 9. So there's a essentially a 90 for the idea that Title 9 does not require biological male participation in female Sports. And there's a 6:3 around the idea. Does the Equal Protection Clause require additional analysis here? Is there some sort of heightened scrutiny that's required that hasn't been done? And so in this way, it's a very interesting case because it's both unanimous and classic ideological split at the same time. And I agree with you. There is a lot of positioning here, I think, not just for the next case on trans athletes, but you're continuing to have this jockeying over the 14th Amendment and transgender status. And I think that that is like when you're Sotomayor reading from the bench, this dissent. I think there's a lot of concern amongst the three justices that essentially what's going to happen is that as a result of the jurisprudence from the majority that there will be a lot of opportunity to target transgender individuals. And so they're trying to essentially make all determinations regarding transgender status be treated at like the Constitution treats sex distinction. So this is kind of there you have a sort of a competing on this Title 9 issue, on this part of the case only, which is it required to allow biological male participation. There's a lot of agreement on the background 14th amendment issue, which again circles back to some of the stuff we talked about with birthright citizenship. I think that's where this is really headed with basically the three justices looking at the majority and saying, everything is Bostock. Everything is Bostock. It's all sex distinctions. And the majority looking back at the three Justices and saying, well, no, Bostock is Title vii. Different civil rights provisions have different rules. And oh, by the way, the transgender individuals don't rise to the level of a suspect class or a quasi suspect class under the 14th amendment. And it's that 14th amendment analysis that's the big sticking point right now.

Sarah Isger

Yeah. So the other thing that I think is worth noting. I'll see if you agree with me. The tone from the dissent quite cordial.

David French

Extremely.

Sarah Isger

We're not arguing over much. You know, we're not even saying that under the equal protection clause that these states couldn't ban trans participation. All we're saying is we would send it back down to look at different things and facts on the ground. This is not one of those strident ideological 6, 3, where the majority says it must come out this way and the dissent says it must not come out this way. Not really. And David, you've said this so many times. This issue as a culture war issue and specifically trans participation in women's sports has so shifted so radically very quickly over the last few years. I think that is really reflected in all of these, you know, in the 77 pages we got on this.

David French

I completely agree. And here's a language that I thought was interesting. This is Sotomayor in her dissent. So she says, yet the equal protection clause demands much more when a state deploys a sex classification to achieve legislative aims. So this is getting to the point where I said that, look, the three justices want a sex based equal protection analysis on these cases. So she says, yet the equal protection clause demands much more when a state deploys a sex classification to achieve those aims. Perhaps West Virginia could meet those demands. Perhaps not.

Sarah Isger

Yeah, I mean, perhaps. Oh, this is very different than Calais. This is very different than even the immigration cases that we saw last week. In terms of tone and I just wanted to underline. Yeah, you know, very different case overall. So the majority opinion. You will simply not be surprised about anything that's in there. There's one paragraph from Justice Kavanaugh that I thought was worth reading here at the very end. We hold that the states may maintain women's and girls sports for biological females. They may determine eligibility for women's and girls sports based on biological sex. The Constitution and Title 9 do not require an overhaul of women's and girls sports throughout America. In so ruling, we emphasize one last point. Most of the biological female and transgender student athletes who are involved in transgender sports disputes around the country are. Are teenagers or in their early 20s. Those student athletes want to play sports. Their desire to compete warrants respect. No student athlete on either side of the issue, whether a biological female or transgender deserves to be ostracized or vilified. Quintessential Justice Kavanaugh language there. Here's how we're ruling. Here's why. But also, everyone involved in this is a human worthy of our respect and dignity. And. And so lay off with the culture war stuff. So says the author of the majority. Let's go to Justice Thomas's dissent.

David French

Good.

Sarah Isger

A man does not have a legal right to compete against women just because he believes that he is a woman. First, transgender status is not a suspect class requiring heightened equal protection scrutiny. We talked about this extensively, David, and what you know, the limitations on heightened scrutiny, we've never added. A class disability is not a class that gets heightened scrutiny. For instance. It is really race, religion, national origin, the end. And all sorts of groups over the last many, many decades have tried to raise their hand at one point or another and said, what about us? And the court time and again has said, nope, that party is shut. We are done doing heightened scrutiny. So interesting, though, nobody joined that. Nobody needed to reach that. That is Justice Thomas, on his own, trying to make fetch happen, to have this as an actual holding of the court, which it is not technically held yet, even though Justice Barrett, in her concurrence in the Scrametti case, which was the transgender medical case, wrote about that as well. His second point. Second, as the court recognizes, this case concerns biological men and boys who identify as girls. Men and boys with gender dysphoria are not women or girls, even if they believe that they are. So sex is an immutable biological characteristic. It is binary. And man and woman, boy and girl are the terms that correspond to adults and children of each sex. To use language, to obscure reality, to show indifference regarding the truth is to lie to the public and cease to treat our fellow citizens as equals. It's a very short concurrence.

David French

Yeah.

Sarah Isger

And again, no one else joined it.

David French

No one else joined it. Where did he put that second point? Interesting to me.

Sarah Isger

Yep.

David French

Not really relevant to the legal understanding here. Felt a little culture worry in a way. And look, you know, the majority opinion, I think, stated quite clearly with that Title 9 is focused about around biological sex, because biological sex, not gender identity, is the relevant characteristic when evaluating the difference in an athletic performance. Performance, that there are biological factors that dictate the differences. It is not ideological. It's not ideological factors that if you're a trans girl, the fact that you are a trans girl does not then render the biology that you were born with irrelevant. And so that's very basic. When I was writing about this for the New York Times, and I was a couple years ago talking about this and making this argument. Title 9 allows for sex segregation because of sex distinctions. And it pro in Title six, even though they use very similar language. It prohibits racial divisions in sports because the irrelevance of race, and it requires sex distinctions in sports because of the relevance of sexual. And so the gender dysphoria does not render sex irrelevant. Sex remains relevant. And I think that that's about as simple a way of describing this case as you can.

Sarah Isger

Well, then let's get to where the rubber really hit the road in all of these 77 pages. Everyone wanted to hear from Justice Gorsuch. He is the author of the Bostock opinion. So Bostock, as you said, was a Title VII case. Gorsuch writes, it's six. Three. Gorsuch and the chief, along with Breyer, Sotomayor, and Ginsburg. And then the three are Thomas, Alito, and Kavanaugh. Okay. And this is about transgender status and sexual orientation and whether those are protected under Title 7, which says because of sex. So discrimination because of sex. And Justice Gorsuch is like, yeah, well, if you're wearing a skirt to work and someone fires you for that, it's because of your sex that they think you're male and therefore can't wear a skirt to work. That is arbitrary. Same with sexual orientation. Right. They fire you because you married a man. Well, if you were a woman who married a man, they wouldn't fire you for that. Therefore, it's because of sex. And maybe Congress didn't know that. That would be the application of the language. But this is an ambiguous language. So we use the text. We're done. At the text. We don't need to look at anything else, and certainly not the purpose that Congress had. Pure textualism, not originalism. So what is Gorsuch going to say in the transgender case? Okay, he says two things. One, Title IX was enacted as an exercise of Congress's powers under the Spending Clause. That provision of the Constitution does not allow Congress to regulate conduct. Instead, it only authorizes Congress to spend money. Of course, Congress may seek to condition the funds it gives to others, but much as with any contract, a funding recipient must voluntarily and knowingly assent to those conditions for them to bear any legal force. And for a funding recipient to provide that kind of assent, Congress must clearly and unambiguously specify the conditions it expects the funding recipient to follow. His point being, because Title IX is a Spending Clause statute, if Congress wanted to prevent states from banning transgender athletes, they had to condition the funding on that. Clearly. Again, clear statement rule. But now it kind of goes in the other direction. The Spending Clause stuff, not the last we're seeing of it, although clearly Justice Gorsuch is the one hot to trot on that. But then we get to the second point, and that's the part we were all waiting for. Second, Bostock supports, not undermines, the Court's conclusion. I'll just say, David, right off the bat, I don't think it undermines this case, but I'm not sure it supports this case. I think it is just totally different than this case.

David French

I think it's just totally different. Yes.

Sarah Isger

Different facts, different conclusions. There we face the question of whether firing an employee for being homosexual or transgender amounted to discrimination because of sex in violation of Title seven, and then goes through explaining what I explained. All of that is consistent with the course the Court takes today. Title 9 prohibits various types of discrimination on the basis of sexual. The Court understands the term sex in Title IX to mean biological sex, just as we understood that term in Title VII in Bostock. Likewise, the Court does not question that on the basis of is perhaps but a synonym for because of, and thus does not require biological sex to be the sole cause of discrimination, just as we held in Bostock. The difference between this case and Bostock is that we face here a question that wasn't present there in Bostock. Again, no one doubted that firing someone because of his biological sex qualified as discrimination under Title vii. Here, though, we face the question whether it qualifies as discrimination under Title 9 for a federal funding recipient to sponsor sports teams restricted to biological women or girls alone and for the reasons just laid out. It does not. David. I think he's spot on here. I do think Bostock is a totally different question, and I don't really understand the arguments to the contrary.

David French

Frankly, I'm completely with you. Bostock is very different. I think that where you would draw comparisons between Title 7 and Title 9 would be in a very, very narrow area of Title vii, which is called the bona fide occupational qualification, which, in other words, race or sex, et cetera, religion, are not supposed to matter unless there is some part of the sex distinction or the religion distinction, for example, that is fundamental. So, for example, in the religion context, having a religious entity hire someone of a different faith would be an overreach. Similarly, even though workplaces must provide equal opportunity under Title VII to men and women, that doesn't mean shared bathroom spaces, for example. So there are certain circumstances, even under Title vii, where sex distinctions will matter. And perhaps even not recognizing the sex distinction could create a Title VII issue. Such as, for example, if women did not feel safe in a bathroom in a workplace, that would be a Title VII issue. Even in where you're recognizing sex as part of treating the sexes equally. Okay, does that make sense? And so with Title nine, you're recognizing sex as part of treating the sexes equally. And so for the 99.9% of Title VII related issues, it's just two ships passing in the night. Compared to this, where you're really saying, and you're circling around the notion that sex requires different treatment, not that sex requires the same treatment.

Sarah Isger

That does make sense. All right, Dave, when we get back, we get to my potentially favorite case of the term, which is the campaign finance case. And prophylactics. On prophylactics. We'll be right back. Well, we've got another six, three in National Republican Senatorial Committee versus Federal Election Commission. Kavanaugh again, writing for the majority. And it's along ideological lines, David. This was the case about whether political parties could coordinate with their candidates. Now, here's what the case is not about. It is not about individual contribution limits, how much you can give to a candidate. It is also not about how much you can give to a political party, which is also subject to contribution limits. It is only about whether after you've given that money to the party and after you've given that money to the candidate, can the two of them then speak to one another? Parties up until now have had limits on how much they can coordinate with their candidates. After that, it has to be an independent expenditure. As a former political operative, I have made the Case that this gives rise to and power to super PACs, something that no political operative in the country, unless you're getting paid by a super pac, actually thinks are good things in our campaign ecosystem. Why? Because super PACs are independent expenditure units without contribution limits, and parties are independent expenditure units with contribution limits. So why would you ever give to the party instead of the super pac? By getting rid of the coordination limit between parties and candidates, I would argue we are going to weaken Super PACs, which is a good thing. These are all policy arguments. We'll get to the legal ones in a sec. But we're going to weaken Super PACs, and I potentially make political parties much more powerful in the ecosystem because they will now have real carrots and sticks for these candidates to prevent the kind of splinter groups, whether it's DSA or Tea Party, from taking over political parties not, you know, that share their ideological and policy goals, which is the purpose of a political party, but instead to basically use the red hat or the blue hat to win elections on things that are often orthogonal or completely contradictory to the stated policy goals of the organization of the political party. I've made this argument before that we killed off political parties with BICRA in 2002, the Campaign Finance legislation. This doesn't solve all of the problem because what BICRA did was get rid of the slush fund basically, that political parties would have. That's still gone. But by allowing the coordination limits to fall, parties can buy advertisements at much cheaper rates than super PACs can. So not only can the candidate now coordinate with their party, the party can buy them TV ads at a much cheaper rate. And so working with the political party will now be an advantage for candidates. And therefore political parties will be able to carrot and stick the candidate that they want to actually, you know, carry their banner. Could, if this rule had been in place in 2015, could the Republican National Committee have prevented Donald Trump from winning the Republican nomination? No, I don't think so. But there's a lot of other closer calls where I think it absolutely this. If this decision had been in place, lots of different candidates in both parties would not have won if the parties had been able to coordinate with their candidates. All of those are policy considerations, David, and the effects of this decision, what say you on that front before we get to the law?

David French

Okay, sticking with the policy considerations, I'm actually surprised if you. If the policy considerations were really the most important thing, I'm actually kind of surprised it would not be 9 0, because I was just talking about this just moments ago. And I said, look, free speech, the free speech clause of the First Amendment, if it means anything, it's to protect political speech. Now, of course, it's not to protect only political speech, but it is to protect political speech. And what we have done is we've created a campaign finance labyrinth that often regulates political speech more than almost any other kind of speech in some interesting ways. And so what this does is it takes aim at. And this coordination issue, I think, takes aim at one of the core issues that is impacting, negatively impacting our democracy, which is political parties have essentially been hollowed out as having any kind of real independent power, both by their own decisions and by court cases like this one, the previous cases that had limited their ability to coordinate with their own candidates. Coordinate with their own candidates. I mean, this is wild that that would be considered like a firewall against corruption, that Democrats have limits on coordinating with other Democrats to win elections. And so from that standpoint, one of the things that's so unhealthy about our democracy is it is too complicated to participate in it. Complexity is a subsidy. The wealthier you are, even in the absence of, you know, even with strict campaign limits, you're much more able to figure out how to navigate the whole thing. And then these bans on consultation between political parties and candidates mean that political parties have less power. They're beholden more to populist uprisings and no, on the policy front, to me, this is an easy case. On the constitutional front, it's actually less interesting to me because I just feel like we need to rip up the whole thing. Like, it's just so bad, the whole labyrinth that we have. We need a reboot. But I mean, I agree with the decision. It's just, man, it, Sarah. It's, it's. I've been thinking about first and writing about and litigating the First Amendment forever. And I promise you, when campaign finance comes up, I have trepidation even talking about it because it's so complicated. And like, I'm like, okay, I'm so glad Sarah's on this podcast because she's been doing this forever. When I did evangelicals permit, I would sometimes lay awake at night worried that I had crossed all the T's and dotted all the I's. That's absurd. Like, a group of private citizens should be able to, like, form a group to help us help their favorite candidate without, like, laying awake at night. That their good faith effort to contribute to American democracy is going to land them in federal prison or have some sort of major federal fine imposed.

Sarah Isger

Okay, so let's move to the law then, right? The question is, under the First Amendment, can Congress pass a statute barring parties from coordinating with their candidates? And the six justices say, no, that is unconstitutional. And the three justices are like, yeah, sure, why not? So I wanted to read the part that I found most persuasive. And we did talk about this before, if you want to go back to the oral argument and the history of these campaign finance cases. But the underlying point is that the Supreme Court held in Buckley that preventing quid pro quo corruption and the appearance of quid pro quo corruption was an acceptable reason ability for Congress to pass limitations on, for instance, individual contribution limits. And then all of this grew up around it as helping that underlying reason that even though this might violate the First Amendment in some sense, sort of under a strict scrutiny type analysis, it overcomes that compelling state interest right, preventing quid pro quo corruption or the appearance thereof. And too narrowly tailored to do that. Individual contribution limits. Buckley struck down spending limits, for instance, as not meeting that. So this is from the majority. Now, the base limits on contributions to candidates serve as an initial prophylaxis against quid pro quo corruption or its appearance in this context. After all, most contributions to candidates are not given in exchange for some official action. The earmarking rules constitute a second prophylaxis. The disclosure requirements supply a third prophylaxis. So prophylaxis upon prophylaxis upon prophylaxis already serve to prevent quid pro quo corruption or its appearance. The political party coordinated expenditure limits at issue here would operate as a fourth line of defense. Such a prophylaxis upon prophylaxis approach requires that we be particularly diligent in scrutinizing the law's fit. But the fourth prophylaxis imposes a severe and direct restriction on free speech and infringes fundamental First Amendment values. Otherwise stated, the restriction on political party coordinated expenditures is disproportionate and is not necessary and narrowly tailored to the government's interest in preventing circumvention of the base contribution limits. I mean. Yup. Now you want to talk about another policy consideration. It's the circumvention problem, David. It's this idea that now you're going to give the $44,000 to the party and then the party is going to spend all that on the candidate of your choice and you've circumvented the $3,500 individual contribution limit to the candidate. But that's the earmarking point, right? We already have a prohibition against doing that. Earmarking your $44,000 contribution to only help Ken Paxton. So you would have to violate the earmarking provision to even get to the need to stop coordination. Again, I think the result of this will not be some sudden circumvention problem, though I don't doubt to some extent, depending on how you think of circumvention, sure, a lot more people are gonna give $44,000 to the party to help all of these candidates, but it's not gonna be to circumvent the individual contribution limits to candidates. It's gonna be because the parties now actually play a role in this whole thing.

David French

So I'm so glad you brought up Buckley. That's our original sin right there. And it's not trying to ban quid pro quo corruption. That's. That's like a bribery statute. That's banning, you know, quid pro quo corruption, bribery. Zero problem with that. It's when you get into what does it mean to have the appearance of quid pro quo corruption, that is the barn door through which all of the horses have escaped. Because that is so subjective. That is so much in the eye of the beholder. And then that has created this whack a mole circumvention issue. Because you do one thing to try to close down the appearance of corruption, and then very creative people come up with other legal structures that allow them to spend money to participate in a political process, and then that creates. Oh, wait, does that create an appearance of corruption? And then. So you end up, smack, smack, smack, smack, every single circumvention when you already have bribery statutes and you're really going after this very amorphous, difficult to define appearance of impropriety kind of standard as a compelling governmental interest to override political speech. And that's. That's my problem right there.

Sarah Isger

So let me read you a little bit from the dissent. For over half a century, a federal statute has guarded against actual and apparent quid pro quo corruption in our political system by limiting the amount of money a donor can contribute to a candidate. The law's theory is simple. A candidate may be induced to trade official acts for campaign contributions. And the bigger the contribution, the stronger both the candidate's temptation and the public's suspicion. The same statute also prevents circumvention of those contribution limits by capping political parties coordinated expenditures with candidates. When a party makes such a coordinated expenditure, it essentially pays the candidate's bills stepping up to fund something the candidate would otherwise have to without limits on those expenditures. A candidate could ask a donor to make a substantial contribution to the party so as to finance his own campaign expenses. It would then be as though the candidate contribution limits did not exist. The donor could give far more to the party than to the candidate directly, understanding that the money would be passed through to the candidate. And with that evasion of contribution limits, all the opportunities for quid pro quo deals would come back into play. So Congress sensibly enough, limited coordinated expenditures. By thus preventing circumvention of the basic contribution limits, Congress protected those limits. Capacity to Suppress Corruption here's the thing, David. I mean, I do disagree with that. Fine. But I feel like everyone should agree that this system has failed. The system we created in 2002 has simply failed and we should start over. I don't even disagree. I think with a lot of the goals of the left when it comes to campaign financing, the actual goals being the prevention of corruption and the distortion of political speech in the country, you know, by things that are not representing most Americans. The extreme distortion. Great. Can we all admit though, that this hasn't worked and that distorting the First Amendment further and further and further to try to make this work also hasn't worked. And so maybe we should let the First Amendment do its job and then if we need more statutes, great. I am on board to sit at that table and compromise and all of the things, but stop trying to Band Aid Bikra. It's not getting their goals accomplished. It's not getting my goals accomplished. It certainly hasn't made our political ecosystem healthier. It's made it sicker and sicker and sicker and so to say, like, well, the First Amendment should be the one to bend to try to make Bikra work. Nothing is going to make Bicra work.

David French

Well, one thing I keep going back to is all of this, much of it designed to limit the effect of very wealthy people and their participation and their disproportionate impact on American politics has resulted in furthering the disproportionate impact of very wealthy people. Not just in the, you know, the Elon Musk, if he wants to, he could spend $20 billion on his own super PAC messaging and all of this stuff. Yes, that is still out there. And a lot of people are saying no, we would fix that too if we could just regulate more. But every new thing, every new layer of regulation. Think of it this way. Every new layer of regulation benefits rich people. It just does. It's absolutely the case. Every new layer benefits rich people. Complexity is a subsidy. It's one of the great insights of the libertarian movement and that the more complicated you make this, the more you narrow political participation. And I know that is not the intent of this. The intent is actually to broaden political participation. But, Sarah, here, here's my question. Ultimately, are all of these efforts going to keep running into a First Amendment firewall? And if you want to do something different, are you just going to have to amend the Constitution and say, okay, we're going to broadly protect political speech as in words, printed words, but when it comes to money, we're going to publicly finance or have overall caps per race? In other words, does it ultimately just require, you know, in a congressional race, no candidate can spend or no. You know, would it just require a constitutional amendment if you want to do this? Because right now it just seems to me that this layer upon layer is just running against a firewall of a First Amendment that, if it means anything, protects political speech.

Sarah Isger

I'm going to take that question with me and really think about a law that Congress could pass that would meaningfully contribute to this, that would not require an amendment. So we're going to leave it there on this case. And David, this was a lot of pages to digest. We're going to have a lot more to say about the end of the term cases that always get kind of short shrift per case as we continue in July. In our July episodes, we've got our term review with Professor Akhila Marr and David Latt coming up. And lots more episodes for just you and I to break this down and find some special guests to maybe come join us. We also had the cleanup orders list come out today where the Supreme Court granted cert on the question of whether assault rifle bans are constitutional under the Second Amendment. And we had some other CERT grants from the orders list the day before. So we're behind is the point. We know we're behind. And by the way, the drama this morning as NPR misreported that Justice Alito was retiring.

David French

Whoa.

Sarah Isger

I've got some behind the scenes on that that we'll get to next time. But as of this recording, which at this point is late afternoon in Washington, D.C. we would have expected to hear something from the Supreme Court. So at least at this moment, no retirement plans from any of the justices. So we can stop doing that at least for another year. Probably.

David French

Yep. Maybe. I would say probably longer. If the Republicans lose the Senate, we shall see.

Sarah Isger

And by the way, CNN misreported the outcome of Watson on air earlier this week. So a lot of a lot of drama in legal media world. But that was so meta I didn't want to talk about it instead of actually getting to the heart of these cases. So all to say, we know we're behind. We've got lots more to cover. We will have more episodes starting next week. In the meantime, the most important thing that you can do as an American, whether you're mad about partisan gerrymandering or super pumped about the NRSC opinion or everything in between, go celebrate the 4th of July and the 250th anniversary of the Declaration of Independence. We are the longest running written Constitution in the world to date, and as Ben Franklin said, it's only a republic if we can keep it. And part of that is just putting all this aside and thinking about how freaking lucky we are to be Americans.

David French

I mean, if you can agree that all men are created equal and we're endowed by our Creator with certain inalienable rights, among them life, liberty, and the pursuit of happiness, you've got something to celebrate. Because you live in a country that, regardless of however much we deviate from that beautiful idea, it is the North Star. It is the founding statement of this country. It's a beautiful statement. It's a beautiful idea. And I, for one, am celebrating that American creed without reservation.

Sarah Isger

And no matter what differences you may have on political beliefs, race, religion, or anything else with your fellow Americans, if you believe that all men are created equal and endowed by their Creator with certain unalienable rights, they are your brother.

David French

Yep.

Sarah Isger

And no more so than on the 4th of July. So go enjoy, everyone. We'll see you next week.