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Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And David, Supreme Court justices testifying in front of Congress? Did they tell Congress to do their job? Kind of. I mean, really politely, maybe. And we have that Alaska Airlines case about religious liberty or political speech. We'll get into what it means when a company opens up a forum for their employees to talk politics. And then it turns out they don't like the politics of all their employees. And lastly, we've just got a bucket filled with Trump bait. The Trump administration and various legal shenanigans. I'm picturing going out fishing and you turn over rocks to find little grubs and stuff. This bucket is full of grub, grub everywhere. So we'll get to

that grab bag at the end. That's a great podcast title, A Bucket Full of Trump Bait. Perfect.

Let's do this. All right, David. Yesterday, we had a somewhat unusual event. Two Supreme Court justices testifying in front of Congress at the House Appropriations Subcommittee and the Senate. Overall impressions I want, David, before we get into the actual details of what they said. I don't know if you remember this, but back in 2010, there was a hearing on the House side, and Congressman Hank Johnson from Georgia, by the way, is still in Congress. I think he's pretty old at this point. Anyway, he was asking questions of Navy Admiral Robert Willard about Marines, pulling more Marines onto the base on Guam. And he asked that Admiral whether the Admiral was concerned that putting so many Marines on one side of the island could cause Guam to tip over and capsize. Do you remember this? I recall this. Yes, yes. The floating island of Guam. Yes. That's right. Now, full disclosure, he later said that he was being funny and he meant it as a metaphor for like a tipping point environmentally, et cetera, on the island. But like, it's insane. I used to use it as a lesson for training people to go do congressional testimony because actually the admiral handled it admirably. And, you know, just didn't flinch at all. Anyway, it could leave the impression, I think, David, that especially if you watch, you know, Supreme Court confirmation hearings and you know about the Guam tipping over moment that hearings are sort of grandstanding absolute stupidity. I did not feel that way yesterday. I thought this was actually the best that our government has to offer in wonderful ways. You had Justice Kagan and Justice Barrett, who, by the way, should go on a road show. What great, you know, mascots, if you will, for the Supreme Court. I just thought...

We'll say ambassadors. Ambassadors.

I like mascots. We'll put a big head on them and send them out. You know, they were knowledgeable and great and answered some questions and explained why they couldn't answer other questions. But I just want to give kudos to Congress. I thought they acquitted themselves very well asking real questions that were important, that were thoughtful, and like they were representatives. Yay, Congress.

Yeah, it was refreshing. Like it was actually serious-minded with some moments of like mild levity mixed in. And I thought it was very sweet of Justice Kagan to acknowledge Senator Lindsey Graham and the role that he played in her nomination. And a lot of people have forgotten about this. And I'd forgotten about this until it popped up again on Twitter. And there was an exchange where Justice Kagan, well, she was not Justice Kagan at that time. She was in her confirmation hearings. And he did this elaborate question that set up to ask where she was at Christmas. And she responded, well, since I'm Jewish, I was probably at a Chinese restaurant, which caused the whole room to break up. And she remembered that as kind of a...

moment of levity and kindness. And then also she said that was when she felt like she had sealed her nomination, that that was this moment of levity. And I thought that was a very nice, touching thing to say in the moment, especially because, I don't know if you noticed it, Sarah, but there's just a lot of vile things, just a lot of vileness around the death of Senator Graham. And I was just shuddering to think of how much worse it's going to be, say, Mitch McConnell's and having major health struggles, and I'm just tired. I'm just tired of seeing people exult in other people's deaths, and zero decorum, and zero, you know, just the total absence of human kindness. And to watch, like, sober-minded, serious discussion, it was so refreshing.

Okay, well, let's start at the very beginning. According to Justice Kagan, what happened is, when Justice Scalia died in 2016, he was on a hunting trip in a pretty remote part of Texas. There was no security detail with him. Justices didn't have individual details. And the closest marshals were two hours away. And so after that, Congress and another congressman went to meet with the chief justice. They were doing sort of a survey of various security protocols for different branches and agencies, et cetera. And at least according to Justice Kagan, repeating what the chief told the other eight after his meeting with them, Congressman Issa was like, you guys are out of your minds. The head of the Office of Personnel Management has more security than you do. You guys are crazy for not taking your own security more seriously. And so they started this process of building up more security. After the Dobbs leak, it became then very necessary to have more individual security for the justices, as we all know, including the assassination attempt on Justice Kavanaugh's life and his family's. And in order to do that so quickly and without a lot of money, they have the Supreme Court police, but they were also borrowing from the U.S. Marshals. And then recently, the U.S. Marshals told them, we can no longer do this for you, and we have to pull everyone back. And so this is basically an emergency request. Maybe that's a little bit strong of a term, but an off-cycle, if you will, request from the Supreme Court to up their budget for security. David, I thought that we could actually play the response that Justice Barrett gave about her experience as a Supreme Court justice and her family, because, I don't know, Us describing it may not capture what it might feel like to be a mom and to have taken on a, yes, a very cool job, no doubt. But this is a duty that she is doing for all of us. This is a public office and what it costs.

Okay, let's listen in. I thought I would just share a little bit about how the threats have affected me and my family personally. they have required me to my children to think about and see things that children should not have to see or think about one example is when threats to my life were particularly intense a few years ago around the time of the Dobbs leak my security details sent me home with a bulletproof vest and I carried it into my house put it into my bedroom dropped it down on a table turned around and my 12 year old son was standing in the doorway of my bedroom and he wanted to know what it was and why I had it and I didn't know how to respond because maybe I lack imagination but I didn't expect that performing this service was going to put me in the position of explaining to my children what a bulletproof vest was and why I had to wear one it's also been reported in the news that roughly six weeks ago I was the victim of a swatting incident at at that point my teenage son one of my teenage sons opened the door to go out with friends and saw in our street, it was full of police cars, who had responded to a false report of gunshots and raised voices in my home. I was very, very grateful that I had Supreme Court police outside my home because they were able to stop and meet with and explain to the county police that it had been a false alarm, and so the police did not actually attempt to enter our home. Many of us, me included, have received threatening, anonymous deliveries designed to intimidate and harass us. They are often sent in the name of Judge Salas' son, who I think, as you mentioned in the beginning, Mr. Chairman, is deceased because he was killed by a disgruntled lawyer who showed up at Judge Salas' home intending to kill her. But her son, 20 years old at the time, opened the door and took the bullet. Instead, her husband standing behind was seriously injured. So I think the message on these deliveries being sent in his name is clear. As Justice Kagan said, federal judges across the country throughout the judiciary, including the Supreme Court, continue to do their jobs without fear or favor, but the threat level is really high.

Okay, David, so that in many ways summarizes what was three hours of testimony between the House and the Senate of what the purpose of this hearing was about. Yeah. I mean, that moment

went pretty viral for a reason. And I'm just glad that Justice Barrett was able to remind people and to speak in ways that were quite personal. I mean, you know, she was speaking in ways that were both personal and professional. And I thought it was very effective and very important for people to see the judge justices as human beings. This is, you know, a big theme of our podcast. The judges are human beings too. And, you know, from everything, from how that impacts their decisions and how they look at the law to the way they experience the job. And it is, you know, I think it's incredibly important to just see that humanity. And, you know, it would shock me, it would stun me if Congress didn't provide some additional security. But again, I think that we're at a time where when I saw that, again, you began to see a lot of people absolutely ripping her to shreds for sharing that information as if, well, if you can't handle it, why are you a justice? Like, this just sort of goes along. And I thought it's supposed to be without fear or favor. And if you're expressing fear, then what? And you're just reminded that there's a cohort, a core of partisans in this country that have utterly and totally dehumanized their opposition. And, you know, I think if we're ever going to get past this, it's just no longer the case that you can say to normal people these days, we'll just hunker down and wait it out. Like, this fever will pass. I just don't think we're there anymore. I just don't think we're at a place where this, quote, this fever will pass. We got to, somebody's got to be the Advil to break the fever. People have to be breaking the, actively trying to break the fever because it's just not enough anymore to just sort of, for the decent people in politics to check out or sit back or take a beat or a pause waiting for this thing to burn itself out. It might burn itself out, but we just absolutely cannot count on that.

Yeah, I had a few reactions. One, the online reaction that I saw was from the right saying, oh, this is why she caved on birthright citizenship.

Yeah.

I've got questions for you. You think the death threats are only coming from the left for Amy Coney Barrett? What? No, they're coming from the right. So this idea that if you only change your opinions, your votes in these cases, you won't get the death threats. None of them believe that. I don't believe that. So like, nope, it's not affecting their decisions because they get the death threats either way because our politics is so broken that, again, that sort of horseshoe of politics means no matter which way you decide, you're going to get an influx of death threats. So I would just chuck that theory out the door, this idea that it's somehow like, oh, that explains why they decided this way or that way. Second, I've said this before, I will say it again. It is not the Justice Barrett part of this that I am worried about. I mean, it is, and she's wonderful. I am worried about the next person with young children thinking about saying yes to taking one of these jobs and that a normal person will listen to that testimony and say, you know what? As a parent first, I can't do this to my family, even if we assume nothing bad would happen to me, because that would be catastrophic to my family. Just the constant security, the constant threats, the constant worries, the not living a normal life. That's not what I want for my children growing up. And so I'm going to turn down this job. And that increasingly, as you get further out from that, you will get fewer normal people, no normal people, willing to do this kind of public service because of the cost not to them, but to their families. Lastly, on the overall security environment, it was interesting, I thought, the other parts that they talked about, which included, for instance, burnout of their own teams that they only have four to eight people per justice, which, by the way, that's for all their security. So Justice Barrett was mentioning, they drop her off at 11 p.m. and then the same team has to show up at 8 a.m. those people can't do that job for very long compared to a cabinet member which has 20 plus members of a security detail.

And by the way, even that is often too little, leads to burnout. Believe me, I've worked very closely with those guys and they're wonderful, but it's hard even with 20 people to do a single person for a serious detail. And David, there was this one other part that I found really, I haven't thought about it. So if you go to like a dinner party at the Supreme Court and you go through sort of the main public entrance, you enter the Supreme Court in sort of the basement level and go through the magnetometers, etc. If you're going for a private meeting, you sort of enter the floor above that. Same idea, though. You go into the building, magnetometers. So just to be clear, as they pointed out, I am not pointing this out, the person is already in the building, right? There is no security check before you get inside the Supreme Court.

Right.

I had not thought of that. And so they mentioned that they are considering building something sort of like the Capitol Visitor Center so that there is a security checkpoint before entering the workplace of all of the court's personnel.

Yeah, that is an excellent point. And when they said that, it just clicked with me because when you walk into the Supreme Court, it's like walking into a federal courthouse level of security, just your immediate, you know, Eastern District of Kentucky, United States Supreme Court, very equivalent levels of security, at least visibly, at least visibly. I'm not going to say that's all encompassing. But yeah, that was a very, a very good point. And Sarah, you raise a great point about are you going to deter people from entering the judiciary? And that's a live question in politics now. It's a very big issue in politics right now because the absolute viciousness, including, and in many ways, the viciousness that starts is within your own party. So if you're going to be wanting to rise up, you're obviously going to have to win a primary contest. And the way our politics are right now, it's the primary contest that is often the only real contest that matters. And that's where the bloodletting is. And it's not just, so you, you enter into politics and you think, well, I'm ready. If I'm on the left, I'm ready to take on the right. Or if I'm on the right and I'm against the left, I'm ready to take on the left. And so you're, you've kind of steeled yourself for this confrontation with the other side. And then you get into it and you realize all of a sudden I'm shedding my friends and having my social life and circle torn to pieces, because first I have to walk through this internecine battle between the different factions of my own side. And the more extreme the factions are on my side, the worse they're going to treat me. And so this is a big problem in politics. We can't let it become a big problem. Well, I don't know what you and I can do about it necessarily, Sarah, but you and I cannot let this become a huge problem with the judges. And it could be even worse in some ways, because a lot of the people who are qualified for the federal judiciary have real abilities to do real things in the world outside the federal judiciary. I mean, they have options for a purpose-filled life outside the judiciary, even for a life with real influence outside the judiciary. And so, yeah, I'm very much with you on that concern. Other interesting moments from the hearing that

were not about security. There were conversations about the shadow docket. And I thought it was very interesting. Justice Kagan sort of jumps in and says, I don't think it's appropriate to call it the shadow docket anymore. I call it the emergency docket. Some of my colleagues call it the interim docket. But, you know, at this point, we really aren't operating in the shadows. We are generally issuing reasoned opinions with majorities and dissents. So no thank you on the shadow docket term. I thought that was very interesting. There was also conversation about the ethics code. And this was, I mean, again, I don't know whether it was Justices Barrett and Kagan bringing out the best in Congress or whatever, but I just thought the whole conversation was wonderful. You have members of Congress asking like, hey, we have these binding ethics codes. Why don't you? Justice Barrett's like, well, I consider it binding. And I think all of my colleagues do too. You're talking about an enforcement mechanism and it's complicated. And let me explain why it's complicated. We can't have someone from outside the judiciary doing the enforcement. You wouldn't want a president appointing people to then decide which of us to go after. That's what Justice Kagan said. At the same time, we sit on top of the judiciary and we oversee their opinion. So that would cause some awkwardness to have judges. And then Justice Kagan says, you know,

It has been suggested by some that we could have respected retired judges perhaps do this. And then Justice Kagan says, I think it is a good idea. And I've said publicly that it's a good idea to have that enforcement mechanism. Not that I think any of my colleagues aren't taking it seriously or even aren't abiding by it, but it would help us to have someone to say, these are nonsense complaints. And then Justice Barrett says, I disagree. I think it's really complicated, and I don't think that we have a good way to, of who would be on that enforcement group, and how they would be selected in a way that actually would build confidence in the judiciary. And I thought, what a lovely, serious, nuanced conversation that is happening on C-SPAN between two branches. I loved it, David. I thought it was great.

Yeah. No, I enjoyed it too. And, you know, even though my judicial name is Neil Coney Bersich, I'm going to be agreeing with Justice Kagan on this one. And we've talked about this. It's not that it's uncomplicated. I mean, Justice Barrett is right that there are complications. But I also think it's doable. And I think it would, I think it's doable. And I'll think it has a, part of the effect of it would be exactly what Justice Kagan said. I'm not thinking my colleagues are going to run afoul of this. what it's going to do is sort of provide confidence in the court and also demonstrate how a lot of the complaints against the court are utterly frivolous, that there's just no, there's no there there. And it reminds me in a, perhaps a less dramatic fashion of like police worn body cameras that, and what the reality of the body camera revolution is that it has actually been good for the police and has shown a lot of very up close and personal. Now, it has shown some terrible things and we have seen police do some terrible things and it's exposed that. It's done its job in that arena, but it's also done, I think, a lot to sort of temper a lot of that really rising anti-police sentiment that we began to see around the country. When you put body cameras on everybody, it actually ended up showing that most police are decent and all police deal with some really difficult circumstances in which judgment calls in the moment are often quite difficult. And so, you know, that's maybe a strained analogy, but that's something that

came to mind. All right. Anything else from the hearings that you wanted to highlight?

No, I'm just champing at the bit. Is that the right word? Is it chomping at the bit or champing? at the bit.

Champing.

Champing.

It's what horses do with the bit in their mouth. They don't chomp the bit. They're not eating the bit. They're champing it. They're chewing at it.

Yeah. So I guess I'm champing at the bit to talk about this Alaska Airlines case. Not just because the facts are wild, but also because I think it's a super interesting underlying

issue. Okay. When we get back, Alaska Airlines, what happens when you open up a forum for your employees to express unpopular opinions? This is why we can't have nice things. We'll be right back. A good night's sleep is an essential part of my job, and that's where the Sedona Elite from Brooklyn Bedding comes in. I feel supported, comfortable, and fully relaxed, which helps with falling asleep faster and waking up feeling genuinely restored. Brooklyn Bedding makes quality mattresses right in their Arizona factory, combining American craftsmanship with honest pricing and thoughtful design. With options for every sleep style, cooling technology for hot sleepers, trusted support for spinal alignment, and a 120-night comfort trial, they make it simple to find a mattress that truly fits the way you sleep. So go to brooklynbedding.com and use my promo code ADVISORY at checkout to get 30% off site-wide during the summer sale. That's brooklynbedding.com promo code advisory for 30% off site-wide. Exclusive with my code, brooklynbedding.com promo code advisory.

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it. It just tastes better. Match days deserve Pepsi. Food deserves Pepsi. Grab a pack of Pepsi Zero Sugar for today's match. It's poetry in motion. Okay, David, two to one Ninth Circuit decision. Alaska Airlines comes out in favor of the Equality Act. This is an act having to do with LGBTQ rights, and they have a web forum. I guess think of it kind of like Slack, but like more both open and stupid than Slack, where they encourage employees to post their thoughts about what's going on. And they have a three strikes policy, as in if you post something they don't like on the forum, they will delete it. If they delete your comment three times, you are banned from publicly posting on this web forum. Again, I can't believe in the, you know, year our Lord, whatever this was, like 2022 or something that people thought this was still a good idea, but Alaska Airlines did. So, we have two employees here at issue. Both are stewardesses, or we don't, flight attendants, we don't call them stewardesses. Okay, one posts, as a company, do you think it's possible to regulate morality?

The horror. Did you give a trigger warning before you read that? I mean, should we put one at the start of the show? Just out of curiosity.

Yeah, okay, this is actually going to be the whole comment, guys. It's, as a company, do you think it's possible to regulate morality? Taylor Ball of Alaska's legal department, legal, the lawyer, wrote, this is now internal communications between senior executives. Employees actually do not have the right to believe that LGBTQ rights are immoral, to which then one of Alaska Airlines vice presidents responded, I 100% agree. Now we have the union, like the head of the union, who's going to defend this person privately sending an email. Employees get to be bigots in their private lives and to express their bigoted and misinformed opinions while not at work, as horrifying as that may be. This post is reprehensible and there should be repercussions. I hate her. Okay.

Yeah, that was my favorite one. I hate her.

Yeah.

What?

Now, so that's Smith who posted the, as a company, do you think it's possible to regulate morality? We're now going to have the second employee post something. She doesn't know that Smith's post has caused all these problems. She's going to post, does Alaska support endangering the church, encouraging suppression of religious freedom, obliterating women's rights and parental rights, This act will force every American to agree with controversial government-imposed ideology on or be treated as an outlaw. The Equality Act demolishes existing civil rights and constitutional freedoms, which threatens constitutional freedoms by eliminating conscience protections from the Civil Rights Act. The Equality Act would affect everything from girls' and women's showers and locker rooms to women's shelters and women's prisons, endangering safety and diminishing privacy. Giving people blanket permission to enter private spaces for the opposite sex enables sexual predators to exploit the rules and gain easy access to victims. This is the Equality Act. Okay, so that's employee number two's thing that she posts on this forum. Now we're back to senior staff emailing each other. I wish fewer people would struggle so much with unifying their faith with inclusivity. Another Google chat. Can we please, all caps, get someone to shut down comments or put these two people, the two commenters, in a burlap bag and drop them in a well. The CEO of Alaska Airlines expresses concern, quote, about censoring people for having conservative Christian views. And David, this is the question, right? Do these women get to go to trial? That's it. Like, does this case get dismissed because they do not have a claim or do they get to at least present this that they were possibly discriminated against for religious reasons? And this is the sort of, you know, paragraph from the majority opinion. Indeed, Alaska was fully aware that some would object to the Equality Act for religious reasons, that Alaska created a forum for employee discussion on controversial issues, then fired these employees after they made religious objections of the kind Alaska anticipated, provides further reason for regarding this case as presenting a genuine dispute of fact on the reasons for the termination. Alaska World's openness as a forum is an important contextual feature of this case, and one that may not recur given Alaska's Up.

rules for commenting on Alaska's forum. In sum, the issue here is not whether Alaska can punish employees who engage in discrimination and harassment. It can. The issue here is instead a factual one of whether Brown was in fact fired for engaging in discrimination or harassment, or whether Alaska instead used the cover of its employee policy to fire Brown because of her religious beliefs. And David, what gets really interesting here is that like, even though that first comment is the more outrageous comment to be fired for. I mean, it's literally a question. I know it's maybe not meant as a total question. It answers itself. As a company, do you think it's possible to regulate morality? It's crazy, in my view, to fire someone for that. That's actually the much harder case because it is in no way clear that that is a religious comment.

Right.

The second longer comment that I read that starts with endangering the church, suppressing religious freedom. That is the comment that is much easier to move to trial on. By the way, it is funny that these two people's last names are Brown and Smith, which sounds fake. All we need is like a Jones as the third employee. But David, this is the question of the case, the facts of the case. I think, I don't know, maybe I'm being naive. I think it will shock a lot of people to hear that a company now is firing, like creating a forum, first of all. That's shocking to me. But then firing someone for posting on that forum? Like, or was that the height of the fever, David? And now that would be shocking in a way that it wasn't maybe in 2022?

I think, well, you know, I think this stuff ebbs and flows. It goes and comes. But right now it's definitely in an ebb tide. That's the low one. I think we're definitely in the recession of sort of this hypervigilant wokeness. And 2022 was actually more, the tide was beginning to turn, but we were definitely in that moment in 2022. And I bet you, Sarah, if you look at the rest of the postings in that channel, you're not going to see a whole lot of like Socrates and Plato and Aristotle. A lot of it will probably be some pretty blunt language in support of the things that the company does. But it's interesting you raise that the actually most innocuous comment is the one that's most difficult legally, because the reality is that the airline is prohibited from religious discrimination. Now, I know there is in, say, California, and there is some limited protection for discrimination on the basis of political view. But as a general matter, that is not a thing that exists. So if a company wanted to fire somebody for their politics, they could do it. but if they can't, they can't fire them for their religion. And then the question becomes, are we talking politics or are we talking religion? And if we're talking, and this is where this case gets very interesting. And I think the second one, because they brought her faith into it, they were talking about her faith and the conflict with inclusivity and her faith. And so when they brought their faith into it, I think it makes it an easier case for her at the trial. But if it is just all this was about was about politics, we might think Alaska Airlines is deeply intolerant, and it would be, that it's ridiculous, and it would be, but it would be legal. And so this is where this gets interesting, Sarah. We can't have a world where if you're a religious employee, you say, well, my politics are driven by my religion. And so therefore, any sort of action against me on the basis of my politics is ipso facto an action against me on the basis of my religion. And I've got a Title VII claim, whereas a secular, say an atheist or agnostic employee would not say that, that their politics is related to their religion. And so would you have sort of extra protection for religious people who engage in political speech in companies? That doesn't seem correct. But at the same time, it's very clear they pulled the religion into it. And so I think that this is where your factual dispute will really emerge during the case. One other thing about this, Sarah, it is, and again, in hindsight, looking back, it is remarkable, not just the brazenness of a lot of the words that are used, but the arrogance of it all. That, you know, you're talking about people who are sort of so convinced that they

were so completely in the right and so completely on the side of civil rights, that they were just very freely venting all of their deep feelings and emotions onto this employee. And even four years later, a lot of this looks absurd. I mean, that longer sort of diatribe against the Equality Act, the Equality Act had a lot of problems. It did overcome a lot of religious liberty protections. It would have had a very... very large impact. As written, as initially proposed during the Biden administration, it would have had a lot of impacts on private spaces, etc. And so their condescension towards her was in many ways as revealing as their anger. They were both confident and in many ways, it feels like ignorant about what this law was actually going to do.

Yeah. I mean, to reread one of the comments from the union rep, I wish fewer people would struggle so much with unifying their faith with their inclusivity. Look in a mirror, my friend. You're struggling to unify your politics with inclusivity of someone who disagrees with you about an act of Congress, which is what we're supposed to disagree about, right? Like, this is about an actual piece of legislation. And you're saying nobody can have a different view of that piece of legislation? Yeah. I found the whole case, David, like, really depressing. maybe on like every front. Obviously, I found the comments from the executives depressing. I felt like the fact that Alaska Airlines created this forum, told their employees they wanted their opinions about it and then got rid of their three strikes policy to just go ahead and fire these two employees. Like, what is happening? But I guess I also, to your point, found the like, the only reason that any of this can happen is if you're religious. Because like, I think of things in the context of religious freedom all the time. But I wouldn't be protected for posting that. This is, I think, an area that the law can't really solve for us. Like, we have to solve for ourselves. So, like, this going to trial, them winning, not winning, I don't know that it, like, helps my issue much, which is, can we please have civil conversations and disagreements about pieces of legislation? Which, again, do I think that's, like, the perfect comment to kick off a conversation about the Equality Act? Maybe no, but I don't think, I think it's a totally reasonable one. It's well within the bell curve of things I think should be part of our civil dialogue about, again, major pieces of legislation that are being proposed. And someone's like, hey, these are my concerns about it. Seems to me like if you're Alaska Airlines, first of all, I don't know why you're weighing in on this. This is another problem we have with corporations feeling like they have to have statements about every single thing going on in our political life. But if you're going to, Isn't it okay for someone to say, I am concerned that this will undermine religious liberty protections? And then someone else to say, oh, that would be a problem. Here's why I think it will continue to protect religious liberty. Like, isn't that the better way to engage someone rather than fire them? Yeah. How dare you be concerned about religious liberty protections? You bigot

were firing you for having those concerns. It's crazy. I mean, the behavior here, the internal behavior, the arrogance, the condescension, the viciousness towards these people. It just really was of this moment. And, you know, you wonder about as this moment like recedes, how many hearts have changed? Is this a moment that's ready and willing and able to come roaring back because hearts haven't changed, just vibes shifted? That's not a sustainable way to handle this. But also at the same time, I'm very leery. And this is something that I really saw rising during COVID. And it's always been there, but I saw it really rising a lot more during COVID. And that is politics as religious identity politics. And so therefore, if I'm a religious person, as I said earlier, well, and if I try to root my politics and my religion, well, then if you disagree with my politics, you're disrespecting my faith. And I've started to see people move in that direction where it's like, well, I'm so confident that my politics are a direct derivative of my biblical interpretation, that you attacking my politics is really attacking my walk with God or whatever. And man, that is dangerous. That is so dangerous. You saw it really rising a lot. And I'm not gonna say all of the exemption requests for vaccination mandates were post hoc rationalizations of just simply not wanting to take the vaccine. But we gotta be honest, a ton were. And when you really start to get to this sense that I've seen, if I want to do something or if I want to advance something and I'm a Christian and you're opposing me, then you're opposing me because I'm a Christian. And that's where this gets very dangerous. And I'm not saying that that's what these plaintiffs have a lot of, especially the one for the longer comment. She has ample reason to believe this was actual religious discrimination rather than political disagreement. Why does she? because they said it, they brought up her faith. And so this is not necessarily, you know, this case, she has additional facts in her favor, but I am really worried about the rise, sort of the.

cultural rise, I've seen it on the right, of sort of equating political disagreement with

religious persecution. All right, when we come back, we've got three little Trump topics to discuss. One, the war powers resolution. Two, the original executive order trying to punish those law firms. That is back in the news. And three, the slush fund. We have the judge now ruling on that. So we'll tick off each of those when we get back, David.

If you want all of your data in one place, you need the Intuit ERP. I'm Damon John, and I run my growing business on Intuit Enterprise Suite. Learn more at intuit.com slash ERP.

All right, David, let's start with Donald Trump recycling the war powers resolution. Tell us what's going on.

All right, let me just start with the beginning of the Politico story about it. It says, President Donald Trump formally notified lawmakers this weekend that the nation is once again at war with Iran, giving his administration another 60-day clock to use the military in the region without congressional approval. So on a letter dated July 10th, obtained by Politico, Trump stated that the strikes that began on July 7th represent military action consistent with my responsibility to protect Americans and the United States' interests, both at home and abroad. The article goes on to talk about that this is an on-again, off-again war. I would say it's been on the whole time. A ceasefire is not a termination of war. And a blockade, which we were doing for a very long time, is an act of war. So even when we had a quote-unquote ceasefire, we're still engaging and active military operations that constitute acts of war against Iran. And really, Sarah, there's not a lot to say about this that hasn't been said. I thought it was notable to bring up, but essentially what you're doing here now, rather than sort of outright defiance of the War Powers Resolution, you're doing sort of gamesmanship with it. You're starting, stopping the 60-day clock, still no congressional authorization of this conflict. In fact, we've seen some congressional rebukes of this conflict. But this is what it looks like when you're papering over your noncompliance with the law would be a good way of saying it. Now, to be very clear, presidents of both parties for many, many years have said that they do not believe the War Powers Resolution binds their hands. They do not believe it is constitutional. But this is sort of papering over their outright defiance and gamesmanship of Congress. There's not a lot to say about it legally, because as we have explained at some length, there isn't any enforcement mechanism here unless Congress is willing to do something very drastic, including cutting off support, financial support for the war, which has historically been extraordinarily difficult for Congress to do because once troops are committed, pulling support from them makes them vulnerable, and nobody in Congress wants to do that, which is why it's very hard to unring the bell once a president takes that initial step.

All right. Let's talk about the slush fund ruling. If you remember, that group of retired judges filed a non-party motion in front of the judge after the actual case had been, if you remember, dismissed. That's then when DOJ entered into that private settlement with President Donald Trump. This caused all the drama. So the motion asked the judge to reopen the case and, you know, find that it was improperly brought, sanctioned the attorneys, et cetera. A 56-page motion, and like, yeah, she's all over it. So this is U.S. District Judge Kathleen Williams. She has ordered sanctions for some of the attorneys involved in the lawsuit. and basically said that the lawsuit was not an Article III case or controversy because one person controlled both sides of the lawsuit. I don't disagree whatsoever, basically, with the findings around that. I still question the wisdom of using a sort of non-party motion of retired judges to do this. I think she could have done this on her own without the motion. I think that was a huge mistake, like I've said before. David, it will be so interesting to see whether the administration appeals this order or whether the lawyers themselves do who have been sanctioned. I assume the lawyers have an enormous incentive to appeal this. But, you know, maybe not. Maybe you let them...

dog lie. Well, it is sanctionable conduct, I believe. I mean, if you're sitting there, I mean, this is fixed was in from the beginning. This isn't a true adversarial proceeding. It's a cooperative proceeding that is an absolute utter waste of the court's time and resources. It is a farce. And so I do think it was sanctionable. I share your concern. I wish that it had been on the judge's own motion that this was something within her power from the get-go to take a look at this complaint and maybe give it a moment to see if they actually are setting up some sort of like, you know, what we used to call when I was in my law firm days, the Chinese wall, where you actually try to create some sort of barrier where there's some sort of effort at legitimate litigation on both sides. But the creation of that settlement agreement and the slush fund was a decisive indication that this wasn't a real case. It was never a real case. So, yeah, I think the sanctioning of the lawyers is sound. And I'm very curious, Sarah, as well as to whether or not there will be an appeal. Because there's only so much lipstick you can put on this very ugly pig. If you're taking it up to the Court of Appeals, how are you saying to them with a straight face, especially after the slush fund settlement attempt, that, yeah, Judge, This was a quite legitimate actual lawsuit that everyone pursued in good faith, both on the prosecution of the suit and the defense of the suit. But the question I have for you, Sarah, once again, we're seeing, you know, as this story is being reported, you know, we're circling back to the Sue and Settle days of the Obama administration and circling back to Sue and Settle and saying, is this any different or is this just, is this so much worse? it's so much more extreme that it's almost difference in kind rather than degree. But here's my question. If everyone is now mad at Suezettle, where's legislation?

Yes. Right? Yes. This is the moment. Yeah. Let's all get on board with stopping this and it doesn't matter whether it's worse or not as worse or different or not. Nope. Look, we all agree it's bad, right? So let's stop it moving forward. And again, legislation is a really easy way to do that. Do not count on president's good behavior in the future because we haven't seen a lot of it in the past. So David, I think there are four outstanding things with this 56-page order that are just worth like sort of issue spotting, if you will. One, the slush fund itself, does this have any effect on it? Well, the slush fund was defunct. Acting Attorney General Todd Blanche, whose confirmation hearing is this week, has assured members of Congress that they don't intend to move forward with that. Of course, there was nothing preventing them from doing that. But the slush fund itself, like not really affected by this because they had, you know, pinky promised not to do that anymore. Second, remember in the settlement agreement, there was the promise not to investigate Donald Trump or his family members for any tax-related criminal or civil penalties that had happened before the date of the settlement. I think we discussed that already, David, that that was just unlikely to stand up at any point in the future anyway. So yeah, maybe this order further undermines it, but I think it was already dead settlement walking on that front. Yeah, I agree. So I don't think this matters much for those purposes. Number three, the sanctions against the specific attorneys involved here. These were the private attorneys, not the DOJ attorneys who were sanctioned. Absolutely will affect their lives. Hence, that is one area to appeal on. But my God, to get disbarred these days is very difficult. So it is possible for these attorneys to just say like, yeah, put a letter in my file, whatever. I don't care. Four, David. and this one is the interesting one to me, legally. The judge seemed to suggest that these retired judges' attorney's fees now needed to be paid for by, you know, the opposing side. Again, non-party movements who, in my view, had zero standing whatsoever for something the judge could have done on her own and is now saying that she would, it sounds like, grant attorney's fees for those non-party move-ins. Again, this is a very, very small part of this order, but I'm going to declare it at least suburban bonkers town and commuting into downtown.

I, suburban.

I'm thinking you might have crossed the border there. The train is already into Bonkers Town proper. One of the reasons why this concerns me is, look, the judge had it in her authority, as we've said this, to do this from the beginning. This is not something that would have not occurred to her. This is not something that's, oh my gosh, I had no idea until I got this brief. And as you said, the judges, while certainly public-minded, have not been injured. There's not an injury that they have incurred here. And, you know, you talk about incentivizing, like, just all of a sudden amicus briefs pouring in like rain, urging sanctions and other kinds of punitive conduct in contentious high-profile cases. I don't know about this. Well, I do know about this. I do know that I do not like that, that part of the ruling.

And just for those non-lawyers listening, the American rule, as it's called, means that each side pays their own way in litigation. That can seem really unfair. It is often unfair if we're, you know, just sort of talking general fairness. But that is the default rule, right? You do not get your attorney's fee paid for. There are exceptions to that. We've talked about this before. if you bring a 1983 suit that your civil rights have been violated by a state official, the 1988 part of that statute can allow for attorney's fees if you prevail. And we have endless litigation on what it means to prevail and all of that stuff. That is one of these notable exceptions to the American rule created by congressional statute. But David, this would be like, I don't know, for so many reasons, not an exception to the American rule.

Yeah, yeah. No, it's, wow. When I saw that part of it, I was kind of ticking through, okay, sanctions, that checks, all of the other factors. Check, check, check. Record scratch sound like, wait, what? No.

And it's so small. And like, this isn't the biggest deal in the world in terms of like, there's no headlines about this. But this is a legal podcast. And by God, I'm going to flag this one bonkers town problem. All right, David, last thing for this part of the podcast, I'm going to read to you from this New York Times piece. Okay, David, here was the headline. Trump administration subpoenas law firms escalating pressure campaign. The uneasy truce between the administration and the law firms it cut deals with last year has erupted into a pitched legal battle behind closed doors. David, we have been hearing for months that those so-called deals weren't holding the way that maybe everyone involved kind of hoped they would hold because the deals themselves were always a little bit weird to begin with. When Trump came into office, he of course issued an executive order seeking to punish law firms that had represented clients he didn't like, and or hired lawyers that he thought had, you know, criticized him or gone after him in some way. The order itself talked about these law firms potentially violating, you know, sort of DEI hiring policies and other things that were less political, but the law firms that were actually chosen sure seemed like each one we could point to why they had been chosen and why other law firms were not on the list. We spent lots of time on this. Just, I think I can like summarize all of those episodes and comments as this is egregious and un-American. Is that fair, David? So we don't have to like revisit the executive order and all that. Not much ambiguity or nuance there. Yeah. No, one of the worst violations of the rule of law from the Trump administration thus far. Yeah. Though the slush fund did overtake it for me, but at the time, it was the worst. Okay. So some of the law firms then agreed to deals with the administration. This looks similar to what we've seen in universities, right? Very, very similar. The administration goes after universities. Some of them cut deals. Some of them don't. The deals themselves are really pretty ambiguous in terms of whether there was even a meeting of the minds between the two parties. Because the terms are so ambiguous, did both sides really agree to what they agreed to? Well, the American Bar Association sued in June, and as part of that lawsuit, the ABA asked a federal judge to order the White House to hand over internal documents and communications between Boris Epstein and Stephen Bannon about these agreements.

In return, the Department of Justice has now sent subpoenas to these law firms that cut deals to depose the heads of these law firms. Now the law firms are having to lawyer up and chaos,

David, legal chaos. Yeah, it's legal chaos. And Epstein is sort of the central figure here. And he negotiated some of these deals. But as the Times story about it says, here's also what he was doing. During the presidential transition before Mr. Trump's second term, allegations rose that Mr. Epstein asked prospective political appointees to pay him a retainer to promote their prospects at Mr. Trump's Florida State Mar-a-Lago. I'll say that again. He asked prospective political appointees, people who could become, I don't know, you know, Senate-confirmed nominees of very powerful positions, to pay him money to promote their prospects. The allegations prompted Mr. Trump to ask his incoming White House counsel to conduct a review into the claims. And according to regime change, there was a warning from David Warrington from the incoming White House counsel. Epstein's conduct must be stopped and his employment and proximity to President Trump should be terminated. Otherwise, his conduct will likely lead to, and at best, a scandal involving the Trump administration and at worst could lead to criminal indictments. So there was a lot of bad stuff happening at that time. remember, this was early in the second Trump term, you have this ABA lawsuit that is sort of digging at all of this. And it's pretty clear that what you're doing here is almost purely retaliatory. But it's a weird kind of broad retaliation because they're taking aim at some of these groups that capitulated, some of these law firms that capitulated. So it's a mess. It's

an absolute mess. And I think it goes to the wisdom of settling these things in the first place. You basically have just like entered the web. You didn't solve your problem. You've created all these other problems. You're never outside. It reminds me of those mob movies. Like when someone, you know, you've got this little, little problem. And so you borrow money from the low level mob guy. Oh, nope. Now you're in. And like, you never can escape. And now your problems get bigger and bigger and bigger. And it's funny because if you're the administration, you want people to cut these deals with you. You're disincentivizing people from cutting deals, especially as you have some pending. I mean, we've seen headlines about Yale getting very close to, you know, having a deal with the Trump administration, Yale Law School, not wanting to be part of it, blah, blah, blah. Like, if you're Yale and looking at this, you're like, wait a second, these deals aren't worth the paper they're written on. Like, they fall apart, but then we're already enmeshed, and we get all the bad press, but we don't get any of the benefits of the deal. We've just seen this over and over again with this administration where they're not rational actors because rational actors would want to incentivize deals. Yeah. But nope.

They're vengeful actors. Yeah. Well, and you could see when the deals were first being cut and there were some apologetics for the deals along the lines of, well, we're responsible for keeping this law firm open. The sanctions could have crippled us. No one was stepping up to help. Instead, they were circling around trying to take our clients from us. So we had to do this. And by the way, if you really read it, what did we agree to anyway? Not that much. It was all sort of vague. It's all stuff we do anyway. And this just allows it to blow over. But that was not correct. That was completely your mob analogy is spot on spot on well david we are heading into the ao doldrums

for the second half of july and august this is when we generally bring guests on and don't worry ao we have got some great guests coming up for the ao doldrums so that'll do it for today and stay tuned for fun stuff ahead and sometimes more fun because we get to have those sort of big picture conversations that aren't just news of the day. So send in your questions. Check out our newsletter. If you go to scotusblog.com and the advisory opinions page, you can sign up for the newsletter and get the transcript and the chapters for each of these episodes. So you can skip ahead to the parts you like, which you never should because you could listen to all of it, right? But all of that. And yeah, if you have questions of those big picture stuff that you want us to do sort of, you know, law school 101 or 3L seminar, let us know and we'll find a guest for it and we'll make it a fun convo. Well, Sarah, I fear that using the

word doldrums undersells the delightfulness of the upcoming offerings. So, you know, doldrums

is almost one of those onomatopoeia words. Like it sounds like what it means.

doldrums. It really does. I will tell you, they will not be doldrum podcasts. By the way, speaking of doldrum era podcasts, do you remember several years ago when we hosted, I believe his name is Avi Loeb, the astrophysicist who was making the claim that this object that came from outside the solar system was a really interesting conversation. I did not realize he's actually like working as i understand it he's actually working like the uap issue or the ufo more commonly known the ufo issue in the trump administration so it was a great you heard it

here first it was less david make it sound like he said a ufo is heading towards us he said it's unlikely but there are certain things that have characteristics that don't seem like they would occur naturally and so we should ask the question and we should like he wasn't a total like no he

It sounded very smart about it to me. No, it was one of my favorite of the Doldrum conversations was that one. I was all into that conversation.

By the way, did you see Project Hail Mary?

I have seen Project Hail Mary. It lives up to the hype. I loved it.

I think it's one of the best movies of the last many years.

I mean, I don't know that I'm going to go that far in a world where Dune Part 2 exists because Dune Part 2 is...

No. No. No. Project Hail Mary was original, well acted. The production value was so high. I just thought the whole thing, start to finish, great movie. And you know it because I watched it with my in-laws and I still thought it was, my in-laws are wonderful. I'm joking, but it was actually a great movie to watch with family. Rocky was the best. Yeah. Okay. Phenomenal. And what I loved

about it is it said, when there's a problem, you just start fixing it. You know, you just get up and you just work the problem. And it was so optimistic in that way. I just, I loved it.

I loved it. Are you going to see the Odyssey in IMAX? Sarah, have we met? Of course, I'm going to see the Odyssey in IMAX. I guess what I should have asked is, have you already purchased your tickets? Of course, I have purchased my tickets. Okay, there we go. Yeah. Husband of the pod is very, very excited about this. And I need to purchase him tickets like secretly because God knows he doesn't listen to this podcast. I'm not ruining anything. But this is going to be like a big deal in our household for him to get to go see that in IMAX. Oh, yeah. Huge. Cannot wait. So if you're friends with Husband of the Pod, I know some of you then email him to tell him the things that I said about him. Like, don't screw this up for me, guys. We're all in on the secret it together. All right, Ayo. We'll talk to you next time. We're headed to the fun times.