A

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. In fact, that's David French. We're in the same room together. We weren't supposed to be, but all of a sudden we get to record not only the penultimate Supreme Court term podcast in the same room, but we get to record tomorrow's podcast in the same room because of the worst travel few days that two people can have where they end up in the same city.

B

It is the silver lining and the very dark cloud of some of the craziest travel delays and experiences you'll ever have.

A

But what a silver lining it is because we got four big decisions today. We got the Cook and Slaughter, what to do with these executive agencies. And we got Watson, Can Mississippi accept mail in ballots five days after election day? As well as Chatri the Geo fencing location data. Do the police need a warrant to know where you were when you took your cell phone to rob that bank? So we'll just. Let's get into it. David. Let's go.

B

Let's do it.

A

Well, David, it was the penultimate day at the Supreme Court. We got four opinions.

B

This episode is brought to you by Google Chrome. You think you know a browser, but Gemini and Chrome, that's new. It can help you with practically anything on the web, like restoring a vintage motorcycle from a 50 page restoration block. Or finally break down that long article you've had open for weeks. Gemini and Chrome is here for it, ready to make anything online make sense. There's no place like Chrome. Check responses. Setup required. Compatibility and availability various 18. Somewhere between the first drive and settling in at the clubhouse, golf becomes more than just a game. Lululemon Golf gear is built for the full range of your day. Light layers as you head to early tee times. Flexible fits move naturally with your swing. Our fabrics wick, sweat and block UVs for hours in the sun. And refined cuts carry you well into the 19th hole. Shop golf gear in stores and online at lululemon.com

A

where do you want to start?

B

We gotta start with Slaughter. Cook.

A

We're starting big Slaughter.

B

Slaughter, Cook. We gotta give the people what they want. Don't do the radio thing where like all the most exciting stuff comes after the third break. No. Okay, let's treat it like a news broadcast. Lead with the big one. So which one's bigger, Cook or Slaughter?

A

I think we start with Slaughter. Do them in the order in which the court did these two, at least. So the Chief justice said that he had two opinions to announce. Now here was something interesting that Professor Josh Blackman pointed out. At that point they posted both opinions on the Supreme Court website at once. Instead of the traditional post, one read some from the majority, the dissent would read some dissent, that can take a while and then post the other. Blackman speculates that this was a market move to reassure the market that the Fed reserve wasn't like going away even though the Slaughter decision like came out the other way. I don't know that that sounds right, but I will say I agree. I can't think of another time they posted two opinions at once.

B

Yeah, that was interesting. I saw that happen. I was, you know, refresh, refresh, refresh and then double boom. I had not seen that in a while. It's fun to kind of think about. But I, they are companion cases. Although the market movement, it would have been a 10 minute movement at most. I, you know, I don't know, 10 minutes.

A

But it, it helped me personally to be able to get them both at the same time because then we could do ABC News sooner rather than having to wait. Okay, so David, big picture. This was six, three along ideological lines. And this was the case about independent agencies, whether the President would have firing authority despite the fact that Congress put in for cause removal protections. Can we just start big picture for a second before we get too far into the weeds of the decision? The chief wrote the majority. The dissent obviously is the three liberal justices. Here's my argument to you. Slaughter both undermines and supports my theory about this court pushing things back onto Congress. So let me tell you both versions of this One, it undermines my theory. Congress passed laws with removal protections and you, the court are ignoring them. Pretty persuasive. Slaughter actually supports my theory. Congress has delegated so much power to the Executive with no ability to claw it back and it's not working. And so slowly but surely Congress has died that the only thing left to do is have the court reinstitute firm barriers for the separation of powers to force Congress to do its job. Otherwise you can tell Congress to do its job all day long, but it can't be because it can't get back any of that delegated power unless the courts actually police the line of non delegation and for cause removal and all of these things.

B

You know, it's funny Sarah, I think there's just a lot to both of those contradictory theories here and I think that if I want to sort of do the meta meta analysis of what's going on, that what we're talking about here is the natural and Inevitable result of the anti Federalist Cato's critique of the first sentence of Article 2. So the anti federalist Cato said that the first sentence of Article 2 is vague and inexplicit. In other words, what is the executive power? It is left undefined. Whereas if you had a sentence, a first sentence of Article 2 as I've talked about, you know, previously, that said the executive power shall be executing laws passed by Congress, then you've narrowed the definition. But here it just says the executive power, which means it's referring to something. As I think the majority does a good job of pointing out, it's referring to something that's sort of a pre existing view of this thing called executive power. There is a thing, and so the Constitution is referring to a thing. What is the thing? And the Constitution doesn't define it. And that is sort of getting to sort of the, the original sin of Article 2 to the Anti Federalists. And that also sort of vague and inexplicit way that the executive power is not defined leads to your interesting and contradictory assessments of it.

A

Okay, let's dive into the Chief's opinion. But I have to tell you, I think the chief is a brilliant writer and he's obviously a brilliant mind. But I kind of finished the chief's opinion feeling like a little bit seasick now that might have been my travel day frankly. But then I read Gorsuch's concurrence and it was like music was playing and fawns were leaping through meadows. It was really something. So let me read a little bit of the chief, we'll talk about that and then we'll go to the Gorsuch opus. So he's talking about the problem about president's so called assistants exercising his power against his wishes. Only if the President's deputies were removable at will would they truly be subordinate to the sole executive magistrate. He's quoting of course Madison. And only then could the Constitution live up to James Iredell's boast that the President would be personally responsible for everything. Some felt that the Senate had to consent to all removals as one of the two entities that appointed the official in the first place. This is the founding, you know, debate in 1789 after the Constitution's been ratified, but now they're trying to like liquidate it. So version number one, the Senate has to consent to all removals. Okay, number two. Others argued that the Constitution was silent on the question, giving Congress the right to select whether an officer may be removed and if so, by whom? The President, the President and the Senate or the legislature or any other person whom they might introduce into office merely for that particular purpose. And a third group contended that removal was part of the executive power vested in the President which the legislature has no right to diminish or modify. The third group won according to the Chief. Right. According to this opinion. And he talks about the Myers decision. And of course, Myers and Humphrey happen within like seven years of each other. They're in really close proximity. Myers, the court's like, yeah, no, of course the President can remove anyone, blah, blah, blah. And then Humphreys basically overturns Myers. But the Chief's version of Humphreys is interesting. I hadn't really thought about it this way before. So in the Myers and. Sorry, in the Humphreys case, you have a court that is really antagonistic to Roosevelt. They think Roosevelt is a, you know, tyrant in waiting, trying to take too much power for himself. And Humphreys, you know, is this partisan hack. Sure. He's a Republican who's been put on the FTC and Roosevelt wants to remove him. And so you have the antagonistic court saying no to Roosevelt and that's the Humphreys decision. So let me just read from Chief Justice Taft. The vesting of the executive power in the President was essentially a grant of the power to execute the laws as he is charged specifically to take care that the laws be faithfully executed. The reasonable implication, he continued, was that as part of his executive power, he must be able to remove those for whom he cannot continue to be responsible. And then in Humphreys, this Roosevelt antagonistic court was like, yeah, but not you, Roosevelt. You can't do that. And like they make sort of this very specific carve out for the FTC saying, well, I mean, that's not really doing executive power. So, no, the President can't remove this Republican. And it was the first time I read Humphreys not just as a Wilsonian concept of removing Congress and the President, like removing political accountability, but seeing Humphreys is actually just a politically activist court thinking that they were at the end of history, that Roosevelt was a greater threat and trying to stop Roosevelt. And the dangers, and everyone hear me now, the dangers of reflexively ruling against a President you don't like in the moment rather than thinking about the principle that you're actually creating.

B

It was very interesting to me. That really did highlight that. Wait a minute. This, you know, very old precedent that everybody's been sort of lionizing and everything. What if this wasn't sort of the robed guardians of justice looking at the Constitution and debating it as if it were the Talmud. But also, yeah, maybe that's some of that, but also maybe some of it is part of this rivalry between the Court and Roosevelt that occurred. And so what we were dealing with here was kind of a mixture. It was a. Yeah, I'm not going to say, I'm not going to look all those years back and say this court was just nothing but a partisan body, but it was also a court of its time and it was a court of the dispute of its time. And so are we really going to say that the, the Humphreys executive decision, which I also thought was interesting that the Chief went back and talked a bit more about how the powers of the ftc, the FTC had powers, but nothing like what we're dealing with now and nothing like what we're dealing with when we're dealing with the mass number of these Alphabet soup agencies. And so the power set that was at issue and Humphrey's executor was a very light grant by comparison. And you could sort of see it how they called it quasi judicial and quasi. I mean, I don't even know what quasi is. I think what they really meant was like not super powerful, not really important, whereas now it's all very powerful and it's all very important. And you can see in sort of real time how it is that a large scale bureaucracy can engineer a series of large scale legal maneuvers and enforcement operations without an elected person or body, either Congress or the President, ultimately in charge of the action. And that that's where it gives rise to this idea of oh, wait a minute, do we have a fourth branch of government?

A

So let's get to the money part of the Chief's opinion. At this point, all that is left of Humphreys is its observation that an agency that exercises no part of the executive power is, need not fall within the rule of presidential removal. If Congress wishes to establish independent agencies to assist it with its functions, it may do so, but it may not foist those agencies upon the President and thus deprive him of the executive power vested in him by the Constitution, something Humphreys itself never purported to permit. If anything more is left of Humphreys, we overrule it. Humphreys has for decades been a result in search of a rationale. As we have often said, stare decisis is not an inexorable command and is at its weakest in constitutional cases where only we may readily fix our own mistakes. Our precedents about precedent teach that a number of factors are relevant here. Every factor, the quality of the decision's reasoning, its consistency with our other cases, the workability of its rule and the interests of those who have relied on it. Counsels in favor of letting Humphreys go, but he notes the permissibility of tenure protections for the Judges of non Article 3 courts, such as the tax courts and the Court of Federal Claims, is not presented or briefed in this case and poses a different set of questions. To discharge the duties of his trust, the President must have the assistance of officers he can trust. That was a quote from George Washington. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President's power are subject to removal by him. Then and only then can they remain accountable to the President and the President to the people. So, David, here's the problem. If you read the Chief's opinion and then you read the dissent, forget Gorsuch for a second. I think the Chief makes the better case. That is because of all sorts of things that are not even necessarily included. My beliefs on sort of the last hundred years of constitutional history and what sort of a disaster that has been. But I thought the dissent scored some real points against the Chief on several of these principles. The dissent is written by Justice Sotomayor. I'll just read a few parts of that and then again, we're going to get to Gorsuch. Just hold your Gorsuch horses. I see you champing for Gorsuch.

B

I'm champing. I am absolutely champing.

A

Okay, here's a few, just a few of the. You know, I think good slices that Sotomayor gets in referring to the Founders. These great statesmen and Justices knew something that today's majority apparently does not, that fealty to the Constitution means respecting not just what it says, but what it does not say and by its silence leaves to others to decide. It also means respecting precedent not as a wooden exercise, but out of a recognition that whatever our confidence in the theories of the present moment, the wisdom of our founding document does not belong to today's Justices alone. Not two years ago, I wrote of a disconcerting trend in this Court's cases when it comes to the separation of powers. This Court tells the American public and its coordinate branches that it knows best. Matters that for centuries had been left to the political branches have been subordinated one after another to this Court's rigid theories of how government should operate. Will these transformations yield the benefits sounding in responsiveness and accountability that the majority touts, or will they risk placing in the hands of a bold and designing man of high ambition an instrument of the worst oppression which will sacrifice every principle of independence to the will of the President? Citing Joseph's story, neither I nor the majority knows with certainty that is exactly why the Constitution leaves decisions like this one involving sensitive trade offs and difficult judgment calls to those best positioned to make them and then to be held accountable for doing so. Colon the political branches. David, that kind of sounds like something I would write.

B

I think that's inarguably well done. A very, very compelling argument. I absolutely acknowledge that that's a very, very compelling argument. I think the problem comes that and this is going to. I don't want to race ahead of us and get to Cook, but I think part of the problem comes with this case is coming up at a period of time in which, in which the full consequences to American democracy of the Alphabet soup bureaucratic universe have become more and more obvious and they're not good for our democracy. And one of the questions you have, I think, is if you're looking at the court, here is one thing that was interesting to me is that reliance interests, which is another way of talking about consequences, are talked about throughout this decision. So I don't necessarily view this as sort of a we are the majority is saying we're sort of the concept, the constitutional purists who are doing a kind of academic exercise and we are the, the ones who can determine all of this. I think they're also looking at the reality of the world and they're saying things like, you know, there is an enormous amount of power that is now in the hands of people for whom there is no clear line of democratic accountability. Is that a problem? Yes, in the real world, that is a problem. Does that shape our reliance? How does that impact reliance interests? These are all consequential kinds of arguments. And I think that Justice Kagan is exactly right to pinpoint sort of the wisdom of the years.

A

Sotomayor, though it does sound like Kagan, actually. And I wonder, like it sounds so much like Kagan.

B

I, I have questions, but yes, sorry, Sotomayor. I mean, what we're dealing with, I think is a. This is very different from Cook. Okay. This is how I'm carving it out. If you're going to talk about reliance interests here, they cut in a million different ways differently from Cook. And part of the problem is that the reliance interest, what we are What I'm trying to say and not saying, well, is the world that we would maintain through reliance is not the world the Constitution contemplates and is also bad for us in some significant ways. And so I. I don't think that as I'm looking at Slaughter, I'm looking at something like I've kind of called dorm room originalism, where you're just going for the purest expression of what originalism would be. Everything else, who cares? We're doing a purely academic exercise. I think the equities of this and the reliance of this and all of this cuts in a lot of different muddled ways. And it is not so clear that the wisdom of the past has, rather than creating a stable system, has created a compoundingly bad system.

A

But here's why the dissent I find quite convicting for myself because I really believe in the sort of intellectual humility of not thinking that you are just so much smarter than all these dum dums from the past on any question, be it moral or constitutional or ethical or anything else. And making Humphreys actually sort of a bit more of a sordid tale about a politicized court trying to stop Roosevelt is a super interesting way of looking at Humphreys, but at the same time, okay, so my grandmother's chocolate chip cookie recipe was very good. I loved her chocolate chips. When she passed, my dad would make the chocolate chips, but he changed a thing in the recipe, made them better, and he gave that to me. I'm an only child. I also changed the chocolate in the chocolate chips. I tried a lot of things. Only the chocolate chips have really. Well, I've probably tinkered with quite a few things actually. Okay. I have two sons and they're very, for some reason into this concept of inheriting the chocolate chip recipe and knowing that they also are now going to be responsible for deciding what to change in the recipe. But now I'm trying to explain to them sort of divergent evolution because Nate is going to change one thing and it's going to be different than whatever case changes. And then their kids are going to inherit just their chocolate chips, chocolate chip cookie recipe and change something based on the change that they inherited. And here's the problem, David, and here's my point. We are a hundred years later and we have evolved this whole time. And what the court is trying to do in Slaughter is go back to undo Humphreys. But you can't undo Humphreys because there's been all sorts of evolution around this path that is not simply like well, if you strip off Humphreys, we're good to go. And that brings us to the Gorsuch concurrence.

B

Finally, finally, the man who comes in and like, sets everybody straight. I. E. Tariffs. Here we go.

A

All right, let me read some. Neither can I ignore the implications that follow from today's decision. Today, independent agencies do not just exercise executive law enforcement power. Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And after today's decision, the President can effectively exercise all those powers too. It's a development that raises important questions, not least these. Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them? How will Congress respond now if realistically it can? And what, if anything, will this Court do about it? David, those are great questions because remember this whole time we've been saying you can't do this unitary executive accountability in the Executive branch, making a more powerful President without major questions doctrine, non delegation doctrine, et cetera, making a weaker presidency. But Gorsuch raises some really good points. Here we are, we're doing one without having fully done the other when after a hundred years it's not just Humphreys, Humphreys happens and Congress relies on Humphreys, it creates all these independent agencies after that and delegates even more and more power after that. And in the meantime, the Court is doing all sorts of things that make that more and more and more and more. And now you're just taking away Humphreys. Oh, yikes. And he talks about that the purpose of these independent agencies was to remove political control, right? To have these technocratic experts. But from day one that never happened. And he has a couple reasons maybe why. Now back to his maybe that was because politicians remained in control of the appointment and confirmation process. Maybe it was because they retained so many other ways to influence an agency's actions. Maybe it was because policymaking, even when performed by technical experts, almost always requires trade offs between competing values. Straight to my veins, David, because the trade offs, why are they being made by experts? The experts often don't see the trade offs because they are hammers that see nails and trade offs are always best left to politically accountable branches. We haven't even gotten to like his solution, just his description of the problem is so glorious. Feels like I'm not going crazy. It just made me feel so much better.

B

Oh, I think that's exactly right and I was very glad to see him acknowledge that. Hey, would Congress have done this, if it knew that it was going to ultimately that it was really just ceding all this to the President, I think the answer is no, it wouldn't have done it. And then you get into, okay, well then does that mean you strike down these. That's when you're starting to talk about your reliance interest and the disruption in the real world. But you know, I keep getting back to, because I find the Sotomayor argument very well presented. But what I keep getting back to is what Gorsuch said very clearly, and I think the historical record shows it clearly, is that from the get go, this idea wasn't actually a real thing. It wasn't a real thing that you had actual independent, an apolitical expertise. What you had was entrenched political interests, not independent interests, but entrenched in, inescapably political, entrenched, immune from democratic accountability or largely immune from democratic accountability. And at Some point here, 80, 90 years later, you're almost in this pick your poison sort of world. When you keep walking down this path, you are walking down a path that every step is entrenching less political accountability. Or do you go another way that is more political accountability without the other half of the equation being finished yet? This is, you know, when you're, you're a great piece in the New York Times where you talked about a more powerful executive over a diminished executive branch. And what we're getting right now is the more powerful executive and the diminishment of the executive branch. I mean, tariff decisions, Trump v. Illinois. I mean, it's, there are things that are, the student loan decision, there are things that are happening that are cabiting and diminishing the power of the executive branch, not the power of the president over the executive branch. But it's all a work in progress. This is not done yet. And so therefore, for the short term, it does in fact seem that we are now closing this president with a lot more practical day to day power.

A

All right, let me read the last part of Gorsuch's concurrence on sort of like, where do we go from here? Because tour de force. It may be true that after today, there is no more fourth branch of government. But the fourth branch's powers still exist. They've just been reassigned to the President. And any president keen on his own authority will have a strong incentive to veto any effort to reclaim those powers from Congress if they try to, you know, actually do anything about it. The consequence is a ratchet effect. Authorities Congress once delegated by a simple Majority may now require a veto proof super majority to retrieve. And he basically says, and that's why this isn't just Congress's problem. He actually, you know, silently is rebutting our Congress do your job thesis. Because he's like, look, Congress will need a super majority to take back some of this power. It's not just Congress's job, it is also the court's job. So he says. Just as today's decision holds that Article 2 requires those who exercise executive power to answer to an elected president, this court's non delegation doctrine recognizes that Article 1 vests all federal legislative power in Congress and no one else. Of course, Congress can still enlist experts to advise it in its work and leave implementation details to others. But the doctrine holds that Congress alone can make laws regulating private conduct. By that doctrine's side stands the major questions doctrine, which teaches that to sustain a claim that Congress has delegated to it some extraordinary regulatory power, an agency must identify clear statutory authority for that power. Vagueness doctrines can contribute too, with its lesson that Congress, rather than the executive or judicial branch, must define what conduct is sanctionable and what is not. And our doctrines addressing Article 3, the Due Process Clause and the Seventh Amendment, can help ensure that adjudications of private rights take place where they belong before independent judges and juries. At the same time, it would be a grave mistake to think that that step is enough on its own. The fact remains the Congress has endowed formerly independent agencies not just with executive authority, but with enormous legislative and judicial powers as well. And now the President enjoys control over all of those powers too. From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong. In Congress and the courts, we have tolerated adventurous theories long enough. It is time to return all the way to the Constitution. David, the last part does make me a little nervous, right? Because this does start to sound a little more like dorm room originalism. You know, true socialism has never been tried. True, you know, separation of powers has never been tried. I mean, okay, but it's been a hundred years. We're where we're at now. And if this all relies on a whole bunch more theoretical adventurism, I'm nervous.

B

I'm nervous. Maybe less nervous than you in one sense, because we have to also realize that this isn't a decision striking down, say, the Administrative Procedures Act. This is not a decision that then says everything that Congress del. All the power that Congress delegated to all the Alphabet soup agencies can now be exercised in free of any other statute or constraint or restriction. That's not what's happening at all.

A

Well, this is interesting, David. Two things that are worth thinking about for the future. How does this affect the partisan requirements that Congress passed? A lot of these agencies require that you have three Republicans and three Democrats. They're phrased differently, but that's the result. Those are not at issue in this case. Those did not get stricken in slaughter. And two civil service. Right. This only has to do with those sort of like top, top decision making, independent commission type people. So civil service reform not affected in any of this. I saw some tweets, some headlines that seem to conflate the two. No, no, no. The President cannot fire everyone in the executive branch today. But where do those things fit into our dorm room originalism?

B

That's a great question. And I think you're starting to get into dorm room originalism. If you're going to say, well, the purity of the Constitution requires all X. Hundreds of thousands of federal employees are now at will, employees at the pleasure of the President that Congress can't restrain. Say for example, if you were going to. And I don't, I, you know, I don't know that there's any real move to do this. That the Administrative Procedures act itself would be a constraint on the President's ability to act in that decisive way that presidents are supposed to act. What we're talking about here is really, quite honestly, I feel like something, if, if I had a critique of Gorsuch's concurrence, it would be that last couple of sentences which sort of remind you of like I'm doing the purest possible constitutional thing versus a really, it's a bit, it's a very important big picture constitutional thing, but it is far from, in reality, far from dorm room originalism. This is not something that has just sprung upon us, as the majority has indicated. It's been decades that Humphrey's executor has been basically on life support. We've had Celia Law, for example. I mean, so this is not, this is not the kind of earthquake that you, that a lot of people talked about on Twitter. So you really are talking about a very mainstream argument that is really, can the President be in charge of, of the eight of the policy making of the agency? That's really the core question here. Is the President in charge of the policy making of the agency? And, and look, I fully acknowledge all of the problems with saying, well, punting it now to Congress. And, and Gorsuch has made this point more than once about, okay, let's suppose Congress wants to act. Well, the president could veto. And it's very difficult to just tell Congress, do your job when there's a presidential veto hovering over. If this was about the civil service, you would see me have a very different attitude towards this. That's when you're getting into dorm room originalism without heeding, without really heed being heedful of the consequences and the reliance interests, etc. But this is something different. It's important. I do not view this as the earthquake that say, Cook would be if it came out the other way.

A

All right, David, we're going to get to Cook right after this break. But I do want to flag just like one thing. You know, we're going to talk about Cook. That's about the Federal Reserve. We're also going to talk about Watson. This was the question about whether Mississippi could accept mail in ballots five days after the election day. And the majority in Watson is going to say yeah, because the statute is silent. As to that, Congress just didn't say. And therefore if they didn't say, it's up to the states. But the Constitution doesn't say whether Congress can prevent removal, can create statutes of for causal removal. So after the break, we're going to have the potential contradiction with why the Federal Reserve is different than the ftc, but also the contradiction with Watson of why silence in one area means federalism and why silence here in slaughter meant no power for Congress to set removal issues. We'll be right back. 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. So 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 3 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.

B

The ultimate cookout starts with the ultimate ingredients at Whole Foods Market.

A

No antibiotics ever.

B

Burgers and kebabs are prepped and ready to throw on the grill. Fire up a juicy ribeye, grab creamy potato salad and savory flatbreads from the prepared foods department and round it all out with 365 brand condiments, chips and dips. At everyday low prices, Whole Foods Market make your summer sizzle.

A

All right, David, time for Cook. It's the Federal Reserve. All right, David. I have been inundated with text messages asking why Cook and Slaughter are not in just enormous tension with each other. This was another chief opinion, but now it's five, four and the four justices in dissent, Thomas, Alito, Gorsuch, Barrett. So it's the chief and Kavanaugh, Kagan, Jackson and Sotomayor. Is the five in the majority saying that the Fed is different? Of course, Donald Trump tried to remove Lisa Cook as a governor of the Federal Reserve, saying that he had reason to believe that she may have committed mortgage fraud, hadn't been indicted, but they had opened an investigation into it. And the question is not the same as the Slaughter question. And it's different, I think, in two important respects. Well, like in a zillion important respects, but many of the zillion fall into one bucket. Okay, two important respects. One, this is really about what for cause removal means not. There was no challenge to whether the forecause removal was constitutional, though you wouldn't know that. From the opinion to the second bucket is that this is an interim docket decision. This is only about whether Lisa Cook gets to keep her job. In the meantime, while this case is litigated, there are as the dissent point as several of the dissenters, because we have a Thomas dissent, an Alito Gorsuch dissent, and a Barrett dissent. Just chock full of questions now. Yes, this case was briefed at the Supreme Court. Yes, there was an oral argument at the Supreme Court, but it is still an interim docket decision. They have nothing about the facts related to the mortgage fraud in the record whatsoever. So we have an interim docket problem and we have a tension with Slaughter problem. David, big picture. Do you feel that they're in tension?

B

I do feel that they're in tension, although I understand the differences. I just need help. And Sarah, maybe you can help me figure out the conceptual superstructure here because I think actually when you cut through everything, I'm going to use a word that I was just talking about before, reliance. And so what I do wonder is if very differently from saying, okay, what we're going to do is we're going to take agencies that are already political and put an actual politician at the head of them that is elected. It seems like a very small move in American law compared to we're going to take the Federal Reserve which as the chief demonstrated has a very different history from these Alphabet soup agencies. There's a lot of indication that the founders themselves sort of as they would interpreted like the original public meaning of what these terms mean. They would not have thought it would have precluded a Bank of the United States type entity. Obviously they did not think it precluded that, did not think it precluded independent, some degree of independence. And so under its sort of this text and history approach, it's different. And then the reliance is massively different here as far as like the entire economic structure and system of the United States. And it looks to me like this is when dorm room originalism blinks is the best way to think about this.

A

This is the Rahimi to Bruin. This is Rahimi, right? Cook is to slaughter what Rahimi is to Bruin. So David, just Gorsuch's concurrence in slaughter to your. I hadn't thought about this and it's genius and I'm stealing it as my own. He is making exactly your point that these so called independent agencies that were supposed to be technocratic experts are all the way into politics but not controlled by a politician. So for instance, he said, take a few examples from just the past two years. In 2024 the SEC took on climate change. That same year the FTC sought to ban nearly all employee non compete agreements nationwide. And then there's late night comedy. Last year, taking objection to a network host's on air remarks, the chairman of the FCC suggested that there would be, quote, unquote, additional work ahead for the agency if broadcasting companies did not find ways to take action. This was the hard way or the easy way, quote, that he gave. So to your point David, he's saying like these are political agencies but no one's in charge of them. Not anyone who's, you know, accountable to voters. But you move over to the Federal Reserve and everyone's like, well as you say, they blink. So here's the chief, here's the money. The money part. Notice what? I didn't call it that time because we're in person. I'm not going to make you blush.

B

Thank you, Sarah. Thank you.

A

Whether, quote cause for removal exists in any given situation will depend at least in part, on the seriousness of the alleged misconduct and the extent of any nexus that may exist to the Governor's professional duties. The key issue is whether the cause assigned truly implies an unfitness for the place or whether it simply represents an effort to secure a more congenial replacement. Our review is deferential, but we are not required to exhibit a naivete from which ordinary citizens are free. In sum, a court may order that a removed governor remain in office during the pendency of litigation if the Governor is otherwise entitled to a preliminary injunction. Otherwise, a President could remove a governor even while litigation over the removal was ongoing and could do so for a very lengthy period of time without substantial cause for removal that would significantly interfere with the independence of the Federal Reserve. And they basically just say, to be clear at the end, the ultimate question of whether the President can remove Cook for cause will depend in part on the underlying facts. In this opinion, we have not addressed the facts as they have yet to be found or analyzed under the relevant legal standards. Rather, we have simply addressed the party's arguments about the appropriate legal standards under which the facts may be evaluated. So, one, for cause removal limitations on the Federal Reserve are constitutional. Number two, you must provide some process in the for cause removal part. So Donald Trump tweeting, I, you know, fire Lisa Cook, she must resign. Now. Those were not processed. Now they go to like some lengths. It's like, it doesn't mean you get to go to the Oval Office and argue your case. It doesn't mean the President has to change his mind. There doesn't need to be many oral arguments, but some ability to defend yourself is required under process. Three, courts can issue injunctions. Remember we talked about this, David, this idea that a government official has a property interest, like, why do you get to keep your job? Why is it not back pay like in Humphreys? I gotta say, out of all of this, I was sort of most shocked by that and that there were five votes for that. But okay, and whatever for cause means, they provide some guidance as to that. That's a lot of questions getting answered in an interim docket decision on the second to last day of the term in a 5, 4 decision. Yikes.

B

So notice when you went through that list, Sarah, that some of this stuff actually ends up mitigating the effects of slaughter. So, for example, if you're going to say, well, okay, the President has the authority over these independent. No, we can't call them independent agents. We'll just call them executive agencies. All executive agencies. The President has authority over. Oh, but guess what? If somebody's going to contest their firing under that system, they will have injunctive relief available to them, which is a big freaking deal. As we talked about earlier. Now they have to show the likelihood of success in the merits, etc. But here's the court kind of on a couple of grounds. It feels like it sort of goes out of the way. And you would never say there are advisory opinions, because if it's a Supreme Court, it ain't of advisory opinion. Right. But at the end of this day, at the end of the day, you're. You're leaving this with the sense that. Yeah, that the Federal Reserve is here to stay. The Board of Governors have job security and oh, by the way, if you think you can fire a whole bunch of people and then just have them set aside back pay for them and while you litigate the cases, well, that really kind of goes back to some of what we're talking about, the breadth. Like, what if you tried to fire a bunch of the civil service? Well, if you didn't allow for injunctive relief, in effect, you could just do it and bite the bullet and pay the back pay. And then, you know, there might be reinstatement at the end of it, but that's the end of a very long process. So it's interesting to me how much Cook mitigates slaughter, but not solely with regard to the Federal Reserve.

A

I want to read from some of Barrett's dissent. What kind of cause must the President assert before he can remove Lisa Cook from the Board of Governors of the Federal Reserve? Does the statute require that he afford her process? If so, so what kind? Can she challenge her removal by asserting an ultravirus claim? May a court issue a preliminary injunction to keep her in office during litigation? And then the biggest issue is the removal restriction in the Federal Reserve Act Constitutional. All these questions are complicated and important, but the last is in a league of its own. And unlike the other issues, the constitutional status of the Federal Reserve is entirely outside the scope of this case. The court does not rule out mortgage fraud a sufficient cause for removal under the law. Instead, it. It denies a stay on the narrow ground that the President has not yet provided Cook enough process. The President remains free to try again, the court says, so long as he gives Cook proper notice and an opportunity to respond. This, by the way, led Justice Alito in his concur. I mean, his dissent. David, are you familiar with the PGA case?

B

Oh, the golf.

A

The golf case. Okay. So for listeners, this is a case back in the 90s, the PGA had a rule that you had to walk between golf holes, whatever you call them. And a guy has a physical disability that prevented him from being able to walk. I think his name's Martin. And he sues, saying that the PGA should be restricted by the Americans with Disabilities Act. And it was, you know, weird decision. And Scalia has this amazing dissent. And Justice Alito quotes Scalia's dissent in the PGA case, in this case, and says, either out of humility or out of self respect, one or the other, the court should decline to answer these incredibly difficult question questions in this case's current posture.

B

That's such. Scalia could write. I mean, I don't care who you are, if you are like, you hate the man. Scalia could write. He could write.

A

He cooks, as the kids would say

B

today, he might even slay. He might even slay slaughter. Oh, now this is podcast magic right here.

A

Okay, so Kavanaugh has an answer to this. In his concurrence, he's again with the chief in the majority of this Cook decision. I agree with the court, moreover, that we should not leave open the question whether the Federal Reserve can remain an independent agency in the wake of slaughter after slaughter. There is a clear choice. Either the Federal Reserve may remain independent with the governor's removable for cause, not at will, or it may not. Leaving that question open would create significant uncertainty about whether the court might soon eliminate the Federal Reserve's independence and thereby expose the Federal Reserve to political influences and jeopardize the efficacy of the US Monetary policy. Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the President could immediately remove multiple governors at will, as well as turmoil in the US and world economies. I would not go down that road. I would not risk destabilizing the US Economy just so we can further mull over an issue that we've been mulling over for decades. He says, david, if there was ever a blink, I mean, that is some. That is some high Y axis, institutionalism, consequentialism. It's Kavanaugh and the Chief. Yes, Barrett's in Dissen. Not my perfect 333 or anything, but wow, that paragraph really stuck out to me.

B

It stuck out to me. If you weren't going to read it, I was going to read it because it really does get into, okay, rely. What do reliance interests mean? Do they matter? If reliance interests matter in the stare decisis analysis, they would matter here almost more than anywhere. I mean, it would be hard to think of a case where there has been more, many more millions of people, many more trillions of dollars that are flowing and impacting not only 330 million Americans, but billions of people across the world based on a particular system that we set up that has a lineage. And Thomas does a good job, I think, of sort of poking holes in the idea that what we have is the direct descendant of, you know, the first bank of the United States. He does a good job with that history. But more or less a 200 plus pre constitutional banking structure, as Roberts points out, that then Israel, if reliance means anything. And I, I think at the end of the day, Sarah, this is where I am on this, is that I can't think of a constitutional theory that says I don't find a hook in the three branches of government where the Fed fits. And it almost feels in like it was grandfathered in as a almost pre constitutional structure, which I have a lot of dissatisfaction with as a conceptual matter. So if I'm in the dorm room and I'm saying this, I lose. I'm going to lose every dorm room argument about it because which of the three branches is this in now? It's quasi governmental, it's whatever. But which part of the government is it in? But reliance blinking and reliance is a valid reason for starry reliance interests are valid when talking about starry decisis. And if they are valid, are they not most valid here is kind of how I'm working through it in my mind. And I see from your face you're like, I'm not all with you. So what do you think?

A

I guess I'm just thinking a lot about text, history and tradition in both Slaughter and Cook. And look, guys, we got these opinions this morning. You know, we have read them all, but we're gonna marinate over them. And there will be many more podcasts, including a whole term review that we're gonna do where we're gonna bring in Akilah Marr and David Latt and we're gonna really chew over sort of things, thematic things. But just for a moment, let's do some thematicness on text, history and tradition. Text history and tradition so far has really been at its peak in these Second Amendment cases. But here I think we see like, why they've been largely limited to the Second Amendment. There's been some forays in the First Amendment that have sort of met with forces on the other side. Here we have kind of a text, history and traditional model for Slaughter, though, again, that Cuts both ways. The dissent points out plenty of history and tradition, frankly, including fights among the founders about this very question, which I think gets to the sort of like, well, look, they didn't write it down. There was a fight about it. Why are you using legislative history when the founders themselves, we documented their fight about this. There were three camps like we discussed. And here in Cook, I mean, talk about text, history and tradition. My God. And all the banks of the United States and the consequences of this. I mean, you're saying reliance. I think I'm saying consequences, but I think we're sort of saying the same thing.

B

Yeah, I'm just using reliance because that's, I think, how you bring consequences into the stare decisis question.

A

Yeah, totally fair. But yeah, I'm here's here's another big struggle I have when I first was reading this case, right, there were two QPs. What is for cause removal? And can a government official have like a property interest in keeping their job type thing? And can courts do that, like let them keep their job versus just damages? And I was saying that like, well, look, the Federal Reserve is different, but not all of it. Some of it does exercise true executive power. They investigate, they regulate, they execute. And there's not a whole lot of acknowledgement of that in the majority opinion that like, yeah, I know they do monetary policy, and maybe that does have a lineage from the first and second banks of the United States. But what about all the other stuff? You're not going to say that that's different, that just gets grandfathered in because we don't know how to split it up. Like severability doctrine doesn't reach this. And speaking of severability doctrine, we didn't even do that in the Slaughter case. This idea that maybe if you take away four cause removal and legislative vetoes, the rest of the law doesn't stand. Where was the severability doctrine, David?

B

So here's my question to you, Sarah. Would the majority opinion have been more persuasive had it drilled down on reliance? Because we, we talked about that. That was a big factor and that was part of the discussion in the Dobbs decision. You know, Alito goes through a reliance analysis here. Does it make it because one of the things that when I'm talking about and explaining the court, the Cook Slaughter dichotomy is one of the hardest things, because what you've said, look, there's a lot of governmental power exercised here. There's a lot of what looks like executive power exercised here. It is, it's just there. It's real. It exists. And yes, there are differences. And yes, the fact that, you know, as Roberts is walking through the history that is not just founders, but the, some of the uber founders, you know, like if you got Madison and Hamilton on your side, you know, you, you, you, you know, in the text, history and tradition, that's, you've been dealt a pair of aces in the first round of Texas hold'.

A

Em.

B

You know, you've got, you've got stuff on your side here in Texas history and tradition. But honestly, I think this was consequentialism. I really do. And, and here's the thing. I'm okay with it. I'm okay with it because we can't have, you can't have a functioning economy, a functioning nation with, with essentially annual dorm room debates. You cannot.

A

Yes, but David, if you acknowledge consequentialism here, why not? In all the other cases where the liberals wanted consequentialism, for instance in immigration law, where it's kind of a close call on arrives in the United States, States versus arrives at. They were arguing consequentialism. So yes, the textualist argument was very strong for the conservatives, but why are we allowed to do consequentialism for the economy but not consequentialism for, you know, people's lives?

B

Well, I think the answer is we are. And guess what? We're getting to that point where, you know, we've talked about that word that we talk about all the time, judgment. Remember how, you know, we were kind of wearing out the majority of when. When Alito in one same paragraph says judge Mage doctrines are bad and now we need judgment. Like, wait a minute. So there are grays. I mean, there, there is a subjective element to the reliance determination. It is not a scientific sort of determination. It is not this level of impact that I can argue automatically equals stare decisis. But at the same time, I think we would all agree that we've got to have some kind of reliance interest involved if we want to have a rule of law. If we do believe that stare decisis is actually a thing that matters, which I think stare decisis is indispensable to the rule of law. It is not. However, at its extreme level, at an extreme end, it's antithetical because extremely consequential mistake could be like chiseled into granite like one of the Ten Commandments. And we don't want that, but we don't want it to be on an Etch A Sketch either. And so how do we harmonize those two? And we're not going to figure it out. Maybe by the time of our Supreme Court term review. We'll give ourselves about 10 days.

A

All right, after this break, we're going to do Watson and Chartre. This is the Mississippi ballots accepting them five days after Election Day. For Watson and Chartre. A Fourth Amendment case that put me to sleep. Let's find out after the break. Two more cases to go. We've got to do Watson. We've got to do Chatry. Let's go. All right, David Watson is where all the attention is because this was the surprise right after oral argument. You and I both thought that Mississippi would win this. Sorry, that Mississippi would lose this, that the rnc, that Trump would win this. This idea that Congress said there's an election Day and that Mississippi was like, well, yeah, sure, but we're going to accept ballots five days later. I think you and I were torn before the oral argument on how it should come out. But after the oral argument, in terms of how we thought it would come out, we thought that it would be. No. States have to consummate their election on election day. Well, 5, 4. With Barrett writing for the majority. No. In fact, federalism wins. And federalism, David, and I think this is an important point. Isn't partisan, right? Some states will do things you like and some states will do things you won't. And you wrote a whole book about this, in fact. And it's this idea that, like, just because the court rules this way doesn't mean you win or you lose, depending on your partisan side. Those headlines really annoyed me today because all it said was that states can decide for themselves unless and until Congress decides this question, but they haven't. So we're just going to let states continue to do this and Congress is free to step in if they want to. Here's Barrett. The question before us is a narrow one about timing. Plaintiffs do not challenge the manner in which Mississippi carries out federal elections. They do not, for example, challenge the general practice of absentee voting. Nor do they challenge the use of the postal service or a common carrier to transmit ballots. Although the Election day statutes refer to a particular day for the election, plaintiffs do not contend that everything must occur on that day. For instance, they do not object to early voting or dispute that officials may count votes and certify a winner after Election Day. Finally, this is not a case about the Constitution. We do not consider the scope of Congress's authority to regulate federal elections. The sole question before us is whether Counting ballots postmarked by election day but received up to five days later violates federal election statutes. We hold that it does not. The election day statutes were enacted and amended across almost two centuries. At all relevant times, the word election was understood to mean the act of choosing a person to fill an office. The electorate's choice is made when voting is complete, not when ballots are received. The election day statutes say nothing about ballot receipt. And we cannot add to the words Congress chose. This was my point about silence, David. Silence cuts one way here, but it cut the other way before.

B

So let me, let me say that I don't think that's exactly right because it's not total silence. The Constitution actually puts a thumb on the scale because the Constitution, and this is something that, you know, that, that the majority, I think, explain pretty well, is the constitutional default rule is the state legislatures decide. And the only way to override the state legislature is for Congress to over is for Congress to intervene. So if the presumption is what the state legislature say is the rule, and if Congress is going to overrule the state legislature's rule, they have to do it loudly. They, they have to do it clearly. And that just saying the, you know, the word election day is not loudly and clearly enough, overruling the default constitutional posture.

A

That's a great point. I found the electoral college point to be the most persuasive for me, for the majority. So reading again from Barrett. The Constitution establishes a system somewhat analogous to absentee voting. Presidential electors shall meet in their respective states and vote by ballot and then transmit their votes to the seat of government of the United States. The Constitution requires the day on which the electors shall give their votes to be the same throughout the United States. But it says nothing about the day for receipt. And of course, 18th century modes of transmission do not offer same day delivery. The Constitution therefore envisions a system in which receipt is necessarily divorced from voting. And it sets the crucial uniform day as the day of voting, leaving receipt to happen down the line. The federal election day statute follows the same pattern they set when people shall give their votes, but leave open when those votes must be received. I mean, David, I do think that's sort of the ball game right there. I totally agree with your point about the default defaults matter, but this was a disagreement between the majority and the dissent. Like what do you look at to determine the history? And there was this line from Barrett at bottom. Plaintiff's theory is that because we are governed by 19th century election day laws, we are also governed by 19th century voting practices. Do you remember, David, we spent like a whole year complaining that we didn't know what the word tradition meant in text, history and tradition. What else would tradition mean other than 19th century voting practices, where we're talking about the meaning of 19th century voting laws. And I've noticed, by the way, that they've really stopped using the word tradition. I see precedent, I see all sorts of other words, but tradition has silently crept out of the room. Hmm.

B

I noticed that too, Sarah. I noticed it too. And I can't remember which one of the majorities used this phrase because I've been reading a lot of pages today and they're kind of blurring together. And we're recording this, you know, after a long day with mutual travel problems. By the way, guys, I did have a delay of two hours on a flight because of insufficient toilet water in the plane. That is part of my trip. But anyway, the phrase that I saw was text, history and structure.

A

Oh, that was the chief. I forget which case it's in, whether it's cook or slaughter.

B

It was cook or slaughter.

A

But it's the chief for sure. Because I was like, oh, oh, chief has dropped tradition.

B

Yes.

A

And Kavanaugh used text, history and precedent, and this was Rahimi. Barrett used text, history and stuff. Anyway, they're all over the place on text, history and. Fill in the blank.

B

Yeah. And thank goodness. Thank goodness. I like to think that our hour of railing on tradition just has re yielding dividends. Our arguments have won the day because the difference between history and. We don't need to rehash all of this. We don't need to rehash what's the difference between history and tradition. But you raise a good point. I mean, it was an 18th century law written for an 18th century time when there was a certain kind of 18th century voting. And in my view, that's where that default that the state legislature really decides going forward controls this. And that's why I'm agreeing with Barrett in the majority.

A

But isn't that like guns? Right. Like we have 18th century, 19th century laws, and then we look at their liquidation to see how they were actually used in practice, even though they had very, very different problems, different guns, different everything compared to now. Well, same with voting. We have Amazon, you know, same day delivery and electronics and all sorts of ways to transmit. Same day. They didn't. So, like, oh, so we won't look at 18th century practices because obviously it was totally different. I know.

B

Yeah. I think of this as a text case. This is fine with just the text.

A

Well, Justice Alito in his dissent, remember, this was 5. 4. The majority separately worries that using historical practice to interpret the phrase election might trap states. Election practices in amber, quote. But the policy of collecting all ballots by election day is entirely consistent with, indeed is compelled by the text, context, and history of the election day statutes. And one reason for codifying legal rules in statute is to trap those rules in amber until they are amended again. I think from a, like, conservative text, history, and tradition standpoint, Alito actually has the better argument here.

B

I just keep going back to text of the. Just stop.

A

No, no, I get that. But, like, if we're doing text, history and tradition, like the argument that you can't be frozen in amber, that's literally what originalism is.

B

Right, Right.

A

Yeah.

B

Okay. On. Yes. I think if you're going down that rabbit hole, I think Alito is. It's got the better of that argument.

A

I did love this line in Alito's dissent, and maybe that's why I'm feeling a little bullish on Alito's dissent here. In 2005, a committee chaired by former President Jimmy Carter and former Secretary of State James Baker found that absentee voting was, quote, the largest source of potential voter fraud in American elections. Oh, my God. They mentioned the Carter Baker commission. It makes me so excited. Okay, here's Barrett's response. Response to that. By the way, election fraud and its appearance are serious issues. Like other such issues, however, they must be addressed through the democratic process. The election day statutes are proof of concept. When voting on different days in different states sparked allegations of fraud, Congress set a nationally uniform deadline for voting. If varied deadlines for ballot receipt similarly call for a national solution, the American people must choose it through their elected representatives. David. Mic drop by Justice Barrett.

B

Yeah, that's why I find that the text, history, and whatever third word you want to add to that so much less persuasive here than just the fact that what we have is the. The Constitution in black and white leaves us to state legislatures unless Congress overrides. And if. If that's the default rule, the congressional override needs clarity, and Barrett lays that out, I think, very, very well.

A

Well, I will just say that whether you love this decision or hate this decision, I would suggest to everyone that actually having a congressional statute with clear language about this would be helpful. Either make it a statute that clearly says states can determine receipt of ballots up to 14 days after election Day. I mean, that actually sounds crazy to me, because if you put your Ballot in the mail before you vote, before 7pm when you're voting, place closes on election Day. I think we should all be reasonable about how many days it could possibly take for your ballot to arrive. So. But Congress should set something like that or should say no. All votes have to be cast and received by election day. I don't feel very strongly as a former operative that one rule is somehow better for democracy than the other rule. I don't think that is the case. But I do think having clear guidance from Congress and maybe some other nationalizing laws, not a ton, but just Congress actually stepping in so that people have more confidence in elections would not be the worst thing in the world. So if you love this decision, put it in a statute. If you hate this decision, put it in a statute. But don't blame the court because they're just reading the statute.

B

I agree with you when you're talking about, when you're talking about election laws that just set a standard, you have to have everything in by election day, where you have election day plus five days or whatever it is for everything to come in, but you vote by election day. A if it's neutral and applies to everybody in the jurisdiction, fine. Both sides can orient their strategies. But instead what we do is we take very temporary phenomenon and attach permanence to it. So, for example, it's a temporary phenomenon. I think right now that Democrats are more likely to vote by mail in ballot. It has not been the case over time. It has been previously Republicans, and then previously there was no partisan bailouts. And then you had Trump saying don't vote by mail. You know, real Republicans vote in person. And that negatively polarized people by voting method. And then also, you know, I know we're not talking about the constitutionality of the SAVE Act. It's interesting. A lot of people are supporting or opposing the SAVE act on a partisan basis, on the basis of mis or outdated understandings of how the different partisans vote. And so stop making election law election rules based on very temporary partisan trends and instead think clearly about what is better for the Republic over time.

A

All right, we're gonna end with Chatri or Chatri, as I think I've been saying it, because I've been adding another R. If it were Louisiana, I think it would be Chartre. But anyway, this is the cell phone location data geofence warrant case. It ends up being 63 Kagan writing for the majority versus Alito, writing the main dissent, joined by a separate dissent by Justice Barrett. Because you know how I've Been talking about how Kavanaugh and Gorsuch repel each other to other sides of the V. Alito and Barrett don't repel each other to opposite sides of decisions, but they're often not joining each other's opinions when they're on the same side. And just note that, by the way, David, just big picture, I struggled honestly to read this case, and in the end I found myself kind of thinking the Fourth Amendment doesn't matter anymore. Like the Fourth Amendment has been overcome by events, even though this is a very Fourth Amendment protective case. I, I think you're just. We're living in an era that we're past it. But I know Professor Oren Kerr, friend of the pod, is going to send me angry emails for saying that. Sorry, but I don't know, I just couldn't. I struggled here. So let me read you some of Kagan. An individual has a reasonable expectation of privacy in records about his cell phone's location. And police intrude on that constitutionally protected interest when they demand the information, even though for only a limited period of time and from a third party tech company. By the way, this is also in Kagan's majority. Google received its first geofence warrant in 2016. Two years later, it received 982, and two years after that, more than 11,000. So look, Kagan's majority is basically going all the way back to the Katz decision. Right. We're going to look at the warrant requirement in terms of whether you have a reasonable expectation of privacy. And she's going to say that like, yeah, it's a cell phone. Yeah, you voluntarily, to some extent, voluntarily being a bit loose there, opted into location, you know, sharing, and it's going to a third party, but you have a reasonable expectation of privacy in your location. And cell phones are so ubiquitous and so addictive. And she says, you know, they basically don't work with the location data turned off. And so if we're trying to do sort of the vibes of the fourth Amendment, then this is Fourth Amendment protected and you need to go get a warrant. Justice Alito is like, are you effing kidding me? The court should not have granted certiorari in this case. And under any faithful application of our precedents, it should now either dismiss this petition or affirm the decision below based on the good faith exception to the exclusionary rule. Instead, the court issued an advisory opinion concerning a now obsolete geofence posture. I mean, David, he has some really good points here, by the way, that, like this, like Google doesn't collect location data this way. Chatri's still going to jail because of the good faith exception. Like why did we do all of this? What dividing line this is Again, Alito can explain why a defendant has a reasonable expectation of privacy in his cell phone location information, but not in his bank records. Debit and credit cards might be viewed as comparably, quote, indispensable to participation in modern society, end quote. And their use creates a detailed paper trail. As a result, modern bank records contain similarly comprehensive accounts of Americans private lives, including the political and religious organizations to which they donate, whether they have visited a psychiatrist, plastic surgeon, abortion clinic or AIDS treatment center, and whether they go to gay bars or straight ones. This was all stuff cited about why location data needed to be kept private. But David, none of that mattered until I got to Gorsuch's concurrence. It's a theme. Gorsuch concurred with the majority. Right. So he's the, he's pro Fourth Amendment. And it all made sense to me, David, after this it all came together. My problem is not with the fourth Amendment. My problem is with cats. It's with this reasonable expectation of privacy, whatever that is, count me unpersuaded, says Gorsuch. Why does tracking Mr. Chatri's movements digitally over an hour or two invade his reasonable expectation of privacy when an officer tailing him for the same length of time would not? Why is location history data Mr. Chatry voluntarily shared with Google not truly shared when a person's bank records are? Does the court just mean to give Katz third party doctrine a quiet burial by suggesting today that any information shared over smartphones using apps and services falls outside its reach? And what does any of this have to do with the Fourth Amendment's terms anyway? I would consult its terms asking first whether location history qualifies as one of Mr. Chatry's papers or effects, and then asking whether the government searched those papers or effects? And Gorsuch says, yeah, your location history is your effects and the government searched it. So it doesn't matter that a third party held your effects for some amount of time. They still searched your effects. Yeah, that makes sense to me.

B

Imagine text. Yeah, it's really. I thought that was phenomenal concurrence and I, because I was just. Sorry, Justice Kagan. I was not persuaded by the reasonable expectation of privacy. I really wasn't. I was thinking, even if you are, even if you're going to defy Justice Gorsuch and say reasonable expectation of privacy is a good framework for analyzing fourth amendment cases where, you know, he obviously has problems with it. My question is, even if you take reasonable expectation privacy on its own terms, who thinks these things are private anymore? I mean, it's like walking around with a radar transponder in your pocket that is also at volume, telling a whole bunch of third party vendors everything you're doing and where you're going. Like, this is something that is one of the more well known phenomenon. And I mean, you can talk to a screenager.

A

Can I just. Can I just say, David, we sometimes give advice to criminals who want to commit federal crimes. Don't bring your cell phone with you when committing bank robbery. Just that should almost be like number one on our pieces of advice to would be bank robbers. By the way, he not only brought his cell phone to the bank robbery, it wasn't like in his pocket where he might have forgotten it. He was literally on the phone walking into the bank robbery.

B

I mean, to the reasonable expectation of privacy point. This is just about like walking back to your house in the snow from. From robbing the bank and being stunned when the cops shows. Yeah, exactly. I mean, what reasonable expectation of privacy. I'm so sorry. You know, I. You have 13 year olds who know that, like, who will tell you. If I talk out loud in front of my phone, it starts feeding me ads like, this is. This is one of the most well known phenomenon. And so I concur in the judgment here. And I had, and I really was kind of not concurring in the judgment until I read Gorsuch. To be honest, Gorsuch put me on back on side here on the, on the fourth Amendment.

A

This whole day to me has been weird because, you know, you've said you're Amy. No, you're Neil Coney Bersuch. Yes, but I'm not. I've never been that far on team Gorsuch. But today was just a very vibing with Gorsuch day for me. And like, not just like, oh yeah, like he's writing the majority opinion for a whole bunch of justices. Like no writing alone, separate concurrences. And like it turned me around. What is happening? I don't. I. This is weird. It's a weird day for me, David. And I'm grateful that we still have one more day left of the term. Let's just real quick run through those cases so everyone's aware. Not that you're gonna listen to this before those come out, but you never know. We have the two transgender athletes cases coming out. We also have the now case that nobody's gonna care about tomorrow, which is the question of whether parties can coordinate with their candidates. And then, of course, birthright citizenship. So what does it mean that birthright citizenship is coming out on the last day of the term? I don't know. And more importantly, no one else does either. I will say this. It opens up all of the possibilities, right? All of them. Everything is now on the table when a case is the last case of the term. It wasn't the last one argued. That one, by the way, was Cook. That came out today. I feel no need to make predictions at this point. We're going to find out in 12 hours. David.

B

Yep, no need to make predictions. It's coming. The scoreboard will light up soon enough. Yeah, I. I actually read nothing into the. It coming out on the last day of the term. I don't know. I just. I've seen so many big cases come out on the last day of the term that it's just sort of. Well, that's when big cases frequently come out. But, yeah, I. I'm listening to those who say it means that the decision might be more complex than we think or might be completely contradictory to what we think. I think that's all possible, but I don't think that the last day the term tilts me one way or the other.

A

My hope that this is a major rebuke of presidential power and government by executive order, and it's sort of putting an exclamation point on it, you know, and making sure it is, like, nice and, you know, perfect to come out the day after slaughter. My guess is still that it's 7:2, and everything is just taking a little bit longer because, you know, the footnotes got to go back and forth and yada, yada. And of course, my fear is that it's 5, 4, and it's going the other way, and everyone's been wrong.

B

You. You outline my hopes and fears pretty darn well. And I tell you this, if it. If it goes the other way, that that will be a very interesting conversation around both text and history. But, wow, that would be such a big decision, Sarah. I think that it would swamp any other conversation virtually about any other decision, because it really would be changing the notion of who an American is, can

A

be, et cetera, and the powers of a president in general on the heels of slaughter. Like, it would no longer be my idea of a more powerful president over a less powerful presidency. It would be a more powerful president and a powerful presidency, which is the nightmare that Gorsuch is describing. So I do think that's very unlikely. Gorsuch is in concurrence on slaughter, talking about how bad that would be if there's one clue, and it's a weak clue, I grant you. But I'll tell you, Gorsuch I don't think is voting for this.

B

No.

A

And so it's really hard to count to five. If it's a five, four in favor of Trump without Gorsuch, it is possible the three liberals plus Gorsuch, but then everyone else, the chief is on the other side. There's no way.

B

Yeah. It's just hard for me to count to five on changing birthright citizenship. I. It's, it's very hard to imagine Gorsuch, after writing the opinion he wrote in Cook, then siding with this executive order change in decades and decades and decades and decades of practice. That's very hard to see. And the chief is an institutionalist. This would possibly be one of the least institutionalist decisions in the history of the court.

A

Also, again with Cook, it's very hard to have the chief write Cook and then vote for the president to be able to do birthright citizenship. So, look, we've got a lot coming out on the last day of the term. We will record an episode a few hours after we get those decisions, and we'll try to get that out asap. In the meantime, we'll all try to have sweet dreams tonight. Children, let sugar plum fairies of, you know, amicus briefs and concurrences float in your sweet little heads tonight. Bye.