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Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And what a weekend. The Odyssey, the World Cup. But this episode will be about why you might want to presume good faith in the people who disagree with you. Because the alternative. Well, we'll get to the Odyssey at the end. I'll just say that. And before that, we'll talk about the politics of and at the Supreme Court, as well as the Third Circuit defamation and cancellation, and the hawaii supreme court back at it not in the good way let's do it okay we watched the world cup at my house and we had a bunch of kids over and nate got very into it and they were you know making argentinian flags and then one of his little friends came up to sell us the flags they're very into capitalism in my house and it was really cute because she was like hey uh we have these flags to sell you. And I was like, what flags? And she's like, dirty flags. And all the parents were like, why would we want dirty flags? And she's like, yeah, they're dirty flags. And this goes on and on for a few minutes. And in the most parenting translation moment of my life, David, I figured it out. Yes, please. They were the Argentinian flag. Does that give you a hint?

Argentinian flag. They have the little thing in the middle of it. And they thought that that was like a, no?

No. Messi.

That is fantastic. Messi's flag. That is amazing.

Nate had told her that they were making Messi's flag. And so she came up and told us that we had dirty flags.

that is fantastic i mean the level of parental translation there is off the charts i was pretty

pleased with myself yeah but it wasn't all fun and games case took a water bottle that he loves saturday morning and i was asleep in bed and my eyes were shut i was not able to defend myself and he swung the water bottle up my face and my tooth went through my lip oh no so i've never gotten lip filler. I just want to be clear. I'm not against lip filler. This isn't a moral stand. I've just never done it. But now I have natural lip filler quite painfully. So, and I'm like, Oh, I kind of get it. Like that's a good look. It's only on one side of my face. Did you have to have a stitch or anything like that? Should I have gotten a stitch? Almost certainly did I absolutely not. No, I just was gushing blood from my mouth and it was pretty gross.

But here you are podcasting through it all.

I was even on ABC and the amount of makeup that they had to put on to cover up the, you know, blood on the outside and everything was, it was impressive. I mean, shout out to hair and makeup. They've seen it all. All right, David, I want to start with the politics of the court, the politics on the court, the perceived politics around the court, all of the prepositions. By the way, we had this like little song we had to memorize prepositions and I only remember the first part. Aboard about above, according to across. That's all, I think I just remember the eights. Anyway, here's a new poll. A new Washington Post Ipsos poll found that more than half of Americans disapprove of how the Supreme Court is doing its job. While 46% believe that the court is ruling on President Donald Trump's policies based on ideology rather than the law. The approval numbers gathered this month are among the court's lowest in recent memory and reflect an ongoing trend of Americans viewing the court's decisions as partisan. The survey showed 55% of Americans disapprove of the court's performance while 41% approve. That hovers around historic lows, although it does not reach the disaffection levels of 2022. That would be the Dobbs ruling. When Gallup reported that 58% of Americans disapproved of the court's performance while 40% approved. Today, 46% of Americans think that the justices rule on Trump administration policies based on their political views, while 25% see the court as ruling based on the law. David, in some ways, our whole podcast is dedicated to why people perceive the court as more political, right? If Congress isn't doing its job, if the president's ruling by executive order, and then executive orders are, you know, much more... more legally questionable and challengeable. It pulls the court into deciding every hot button political issue because that's what the presidents are doing without Congress, yada, yada, right? This is like the overall thesis. We don't need to revisit that. But I still think there's some interesting stuff here. One, it's like a Rorschach test when I read you that data, which side you think is driving the low numbers. And it's a trick question because the answer is both, right? When I read that last part, Americans think the justices rule on the administration policies based on their political views. Yes, that's both slaughter and birthright. That's Calais and tariffs. And so while the court as an institution's approval numbers have ticked down in line with other institutions that continue to tick down in this sort of populist moment, Right. The court has seen these little spikes and the spikes tend to be more driven by partisanship on both sides.

So weirdly, when a Republican is in the White House, Democrats approval for the court drops when Trump attacks the court Republican approval for the court drops. And so when you see historic lows, it is almost certainly because of both streams meeting right now, which is what's happening in the end of this term, where they ruled against Trump, therefore Republicans are mad in birthright, but also they ruled for conservative things, therefore Democrats are mad. And then that drives the historic lows sort of on both ends of the partisan spectrum. David, we had talked about this Wall Street Journal piece by James Ramoser, and it talked about Alito, right? The headline was Samuel Alito, a MAGA-friendly justice with a new conservative legal vision. And I said that I was pretty confused about the universe of more than 300 cases and emergency the appeals where the first or second Trump administration presented arguments? Because I was like, OMG, that would be like so much higher than would make sense. So I reached out to James, wonderful dude, by the way. And no, David, I was just very wrong about this. So here are the numbers. Okay. In OT 2025, the SG's office presented oral arguments in 49 out of the 58 argued cases. Just like extremely high. I did not realize that. Yeah. In OT-19, it was 47. In OT-18, it was 49. In OT-17, it was 43. So basically the number of merits docket cases in which the Solicitor General's office argued during any portion of either of the first or second Trump administration is over 250. Then you add 62 or so Trump-involved emergency applications, plus two argued cases in which Trump was a party in his personal capacity, and you are well over 300. So anyway, I had like questioned the correctness of the Wall Street Journal. And I just thought I need to now come on and explain that they were very right. And I was very wrong about how you get to 300 very easily. And this fits into the political theme, right? Because the percentage of votes aligned with Trump or his administration in those 300 plus cases, it was 78% for Alito at the high end and 35% for KBJ at the low end. Now, if you just use the 100 major cases, Alito went up to 89% and KBJ went down to 2%. And I guess there's a couple of takeaways here, right?

The thrust of the article was about Alito, the MAGA-friendly justice, and sort of the theory being that, you know, unstated, that he's a political actor on the court. And we've talked about that before. What we didn't talk about was the KBJ numbers. Right. That if you're only ruling for Trump 2% of the time, that actually makes you more political than Alito's 89% of the time. If we're just doing, you know, raw numbers, 100 to zero, 2% is much closer to zero than 89 is to 100. A few things there, though, David. KBJ has only been on the court for 1.5 Trump terms. So we do have far less data to draw from in that sense. That being said, when you bring in the 300 cases and she moves up to 35%, that is almost a more concerning difference to me.

just all the cases where trump is you know the administration is involved we would expect many of those to be kind of all over the place um and so she's at 35 okay i'm trying to explain why the the two percent makes that more concerning because in the hundred cases that were the most politically ideologically salient yeah which is more subjective admittedly but that's where she

drops to 2%, that looks worse. Yeah. And I think that Justice Jackson sort of, if you read her opinions in totality, it does feel to me as if there is an element here of sort of at this time in history, I am standing against these people. Sort of the sense that this is an administration that is careened completely out of control. It's the horse in the hospital to use the John Mulaney comedy bit and somebody's got to put a bridle and reins on that horse and she is the person to do it and I do feel as if there is a bit of a almost a this is an unusual time for which a justice has to have a decisive response kind of element to her jurisprudence and the way I would put it with Alito it's interesting if I'm going to sit there and think about which justice is going to be most, will be, will give sort of a MAGA populist legal theory the most open-minded hearing. I'm thinking Alito right off the top of my head, more so than Thomas. With Thomas, I think of him as just sort of permanently idiosyncratic. And with Alito, I do see him as somebody who is, you know, just, if you're going to have some of these newer theories that the populists are bringing, some of the less democratic approaches to governance, et cetera. I feel like Alito has a more sympathetic ear, say, than a Justice Barrett or a Justice Roberts or Kavanaugh. And again, Gorsuch is sort of his own thing as well. But yeah, one thing, though, on those numbers, Sarah, that I think is very interesting. And I think that one of the reasons, because you hit on one of the first things that I thought of is, who is angry? Because part of my thought was, you can't read the right for five minutes without them being furious at the Supreme Court, and especially Amy Coney Barrett. Just there's all of this anger against the court from the right, which a lot of people on the left would be shocked to hear about. They have no idea. But Sarah, I also think that we're in a time in which this is a very common mode of argument. And let me move from a Supreme Court case to a legislative fight. I watched Stephen Miller talk on Fox yesterday about the SAVE Act. For listeners who haven't followed this closely, this is the act that would require proof of citizenship and registration, identification when you vote. And it looks like it's kind of dead in the water in the Senate. Lisa Murkowski wrote a really interesting piece in the Wall Street Journal about why she's not voting for it doesn't seem to be happening. But Stephen Miller gets on TV and basically says, there is no credible argument against this.

In other words, all, if you believe in facts and reason, if you love America, there's just no argument against this. And this is the common form of argument now I see on the far right and the far left, which is we are so obviously correct here that your disagreement with us is a sign of your corruption because there is no other way for you to disagree. Maybe you're totally ignorant. Maybe total ignorance will excuse you. But if you know the issue, if you're a person of good faith, then you are going to agree with me. is, and you see this all over academia, all over academia in the bubble world, especially of elite academia, they get so convinced of certain truths that they really do take opposition as proof of some sort of character defect or yawning, staggering incompetence and ignorance that makes us have to treat you with contempt. And I've just seen this metastasizing. It's sort of the, you know, you go back to 2020, 2021, and if you disagree with me, you're racist. And then for about all 10 years of the Trump years on the far right or MAGA right, if you disagree with me, you're a coward. Because I'm so obviously correct that the only explanation is you must want your liberal masters in the New York Times, you know, bowing down to them. And I think that this form of argument just spread and spread and spread is teaching millions of Americans that there's no legitimate opposition to their point of view. That'll kind of be the theme of this podcast, in fact.

Won't it, though?

Before we leave this topic, a couple more points. One, I wonder if you agree or disagree with a sort of math-ish thesis. I don't know if I agree with it, so that's why I'm testing it out on you. The 300 cases should be a closer proximity just through numbers, like denominator numbers, of conservatism than Trumpism. And the 100 should be much closer to sort of distilled political ideology, Trumpism, current politics, right? The 100 quote major cases versus the 300, all the cases brought where the Trump administration touched it, basically. So what you would want to look at to determine a justice's politics score actually might be the difference between the two. Because if you're just, you've got like a theory of the case, then it shouldn't matter whether the cases are more politically salient. If I pluck 100 cases at random from the 300, it would look the same as the 300. But if I'm not plucking them at random, well, then you've done something different with those 100 cases, right? So, if you look at it that way, David, this gets really 3-3-3.

Oh, interesting. Okay, do tell.

Okay, so, the chief justice in the 300, 66%. The chief justice in the 100 salient cases, 67%.

Mm-hmm.

He is the closest.

Okay.

To it being a random selection for him.

Okay.

Justice Kavanaugh, 72% in the 300, 76% in the 100. Justice Barrett, 74% in the 300 and 70% in the 100. So Kavanaugh and Barrett switch. Kavanaugh goes up a little bit when they're politically salient in favor of the Trump administration. Justice Barrett goes down a little bit when they're politically salient in favor of the Trump administration. But we're talking four percentage points, and I think that would be well within the margin of error of my test here. Yeah. Okay. Justice Gorsuch is at 68% in the 300, but he's at 84% in the 100. Big jump. Yeah. Justice Thomas, 76% in the 388% in the 100. A 12% jump. Yeah. Not nothing. And then Justice Alito, 78% to 89%, and 11%, the smallest of that threesome. Again, he's actually relatively consistent, which makes it interesting that we pick him out as the MAGA justice, when in fact, according to my thesis, nope, just super flippin' conservative.

Yeah, yeah.

With the three liberal justices I already talked about, KBJ goes from 35% to 2%. That is the biggest jump of any of these. Sotomayor, 40% to 12%, and Kagan, 46% to 23%. David, I think my thesis is actually on to something here, that this is a way of measuring politicalness for justices. It doesn't mean that they are deciding for partisan reasons or anything else. It doesn't get to their motivation. That's what I'm trying to get at. But it does get to whether they change their decision-making matrix if you will based on the political salience of the case so the one critique i would have of

that methodology would be the 100 if they're different in kind doctrinally if the fact that

i know it makes it hard right they're politically salient but what if 50 of them are on the

administrative state right exactly or like the gorsuch numbers yeah i would imagine having not This is just me speaking with informed speculation. I would imagine that a lot of that gap could be explained by criminal justice cases, that Gorsuch is lower compared to sort of where the Trump administration would want him to be from the SG's perspective because he rules with the liberal justices on criminal justice cases more often maybe than the other conservative justices. And then the big 100 really haven't been criminal justice at all. That's just not part of the category. So that would be my one sort of critique comment on the methodology, but I think it's very interesting.

All right, David. Now you talked about the sort of vitriol against some of these justices and in particular the rights vitriol against Justice Barrett. There was a tweet from a large MAGA account that said, you know, based on the testimony that we played for you last. week after Barrett and Kagan testified about her 12-year-old son seeing the bulletproof vest, etc. This account tweeted, she is now publicly admitting she is compromised by threats against her family. Not what she said. I mean, there's no way to interpret what she said that she has ever changed a decision or how she approaches a case based on those threats. All she was talking about is what it is like to be a Supreme Court justice right now.

Yeah.

Okay.

I mean, saying it sucks getting death threats is not saying I change my rulings because of death threats. Those are two very different things. And it's totally normal for a human being to say it sucks getting death threats. I mean, come on.

As you can imagine, that tweet led to lots of calls for resignation, impeachment, and dot, dot, dot, death threats. So David, I wanted to tell you a little story that happened this week out of the Southern District of Florida.

Okay.

This is not a good story. I just want to tell you that up front.

Okay.

On July 8th, Judge John E. Steele, a Clinton appointee, issued an order compelling ICE to release a non-citizen from custody. The individual in question, last name Morales, had a serious criminal record. He was convicted of hijacking a commuter aircraft in Cuba and was sentenced to 22 years in prison. Okay. Based on that alone is going to be how everyone makes up their mind about this case. But now I'm going to read you from the actual order, which is really short. We'll put it in the show notes. If you guys want to read it, you're welcome to, but I'm going to read you most of the parts that matter. Morales is a national and a citizen of Cuba who entered the United States on March 19th, 2003, when he and at least 11 other Cuban nationals boarded a commuter aircraft in Nueva Garona, Cuba, assaulted the crew, and forced the pilot to land in Key West, Florida. Guerra Morales was ultimately sentenced to 264 months in prison for aircraft piracy and conspiracy to interfere with a flight crew. After he spent 21 years in prison, Immigration and Customs Enforcement placed Guerra Morales in removal proceedings, and an immigration judge ordered him removed. However, the immigration judge deferred his removal to Cuba because of a Convention Against Torture claim. Thus, on March 1, 2023, ICE released Guerra Morales under an order of supervision. Despite complying with all terms of his order of supervision, ICE arrested Guerra Morales on December 30, 2025, after determining that it intends to remove Guerra Morales to Mexico.

Okay.

Once a non-citizen's order of removal becomes administratively final, the government shall remove the person within 90 days. Detention may continue after the removal period, but not indefinitely. Citing the Supreme Court decision, Zad Viedes v. Davis from 2001, In Zad Viedes, the Supreme Court held that if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In short, this is still the judge's order. Respondents have had more than three years since Guerra Morales' order of removal and more than six months since his present detention to remove him from the United States and are still unable to articulate a specific plan for his removal to Cuba, Mexico, or another country. And while there may be some possibility that Mexico will eventually accept Guerra Morales, notwithstanding his criminal history and cat status, that is not the same as a significant likelihood that he will be accepted in the reasonably foreseeable future. If removal becomes likely in the reasonably foreseeable future, ICE can re-detain Guerra Morales to assure his presence at the moment of removal. So David, that's the end of the order. So yes, a guy who hijacked an airplane is now out on supervised release. The administration, which by way gave no evidence that they had even called the country of Mexico to see if they would accept Guerra Morales, they had made no indication they had done anything other than re-arrest this guy and say that they wanted to send him to mexico that's it so they didn't contest this in court they also did not appeal the ruling which was from july 8th okay or critique the precedent he was bound by supreme court precedent the 2001 precedent that i read instead they issued a formal press release on july 14th naming judge steel and lambasting him as an activist judge intent on thwarting president trump's mandate the fallout was exactly what you would expect. Nasty calls, emails, and threats. And these were directed not only at the judge, but his law clerks too, after an internet sleuth dug up their cell phone numbers.

Oh gosh.

Hours later, Judge Deal died. I don't have the circumstances of his death. I am guessing this was a...

sudden health episode like a heart attack as his chambers were being inundated with death threats and as his clerks started to get those death threats as well to their personal cell phones. David, like he followed Supreme Court precedent. The administration didn't even contest it in the hearing and they didn't appeal it because they had no legal grounds to do so. And instead they just issued a press release knowing the result. And this, you know, I think I've talked about the Trump administration problems? Plenty. This is not a right or left problem. This is both sides. When they lose on the law, they bang on the table, but they don't just bang on the table, you know, on politics. They bang on the table to send their supporters to attack these justices. We saw it outside the Supreme Court when Schumer did it. We're seeing it with this press release today. This has real consequences. I'm not saying that this led to his death. I don't know that. I don't know what he died of, except I know he, you know, it wasn't a violent death and I know

he wasn't sick. So lightning didn't strike this guy, David. Yeah. Yeah. And, and, you know, I know there is a category of person that gets just like volcanically angry when they hear the phrase both sides. But, you know, when you've had somebody arrested for trying to kill Justice Kavanaugh, when you have this kind of, and from, from the left, when you've had this kind of stuff from the right, and we just keep seeing it again and again and again, it is very obvious at this point. You know, in 2016 and 2017, I think there was at least amongst some people who are sort of pugilistic online, they didn't realize, maybe, I'm going to be charitable for half a second, Sarah, and say they didn't realize that when they, a big account, tweeted terrible things about somebody, that their followers would then swarm that person, threaten them with death, try to dox them, try to do all of the things that you just described. But it is the year of our Lord 2026. And everybody knows what happens. Everybody knows. And so one of my, you know, at this point, if you're talking about whoever it is who tweeted that from the Trump administration, you know, the presumption, I think it's a rebuttable presumption, but the presumption is They know what they are triggering. And you almost have to impute intent here. They are intending to trigger this kind of reaction because at this point, it is so well known that this occurs. It's like night following day. And this is a constant reality that our judges and justices are facing. And I'm glad you highlighted that incident. It is, you know, when you were saying that and you're walking through the facts, there was no appeal. This is following Supreme Court precedent. They could easily rearrest the person if they were going to actually truly deport them. And then they put out that press release. These are just horrible people doing horrible things on purpose. And, you know, it is just I don't think we're as used to. And I think we have we know we're not naive. We know that every administration, every sort of government has terrible peoples embedded within it somewhere. But just the intentional, horrific mistreatment of people that comes out of parts of this administration, it's just unbelievable. And again, there is no excuse. We know what this leads to now.

Well, David, when we get back, let's continue our walk through why are y'all so mad at each other? why can't someone disagree with you in good faith? Why can't we say, oh, that's interesting. I don't have that perspective. Let's figure out why you got to a different conclusion than I did instead of you must be corrupt. You must be evil. We'll do that at the third circuit right after this. 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 brooklynbetting.com promo code advisory for 30% off site-wide exclusive with my code brooklynbetting.com promo code advisory. All right, David, we're going to hop into the third circuit cases about not good faith. And before we do that, Sarah,

I just want to circle back to that, the dread phrase we used last.

segment both sides, because there was just this tremendous post from FIRE that I thought was really interesting and might surprise some people, but it's perfect segue into our little third circuit case. It says, FIRE's campus deplatforming database now has documented 2,057 attempts to prevent or punish campus expression since 1998, 2057. All right. If I was going to ask you, did more attempts come from the right or from the left? What would be your thought on that? So what FIRE does is it tracks, does the attempt to cancel come from the right of the speaker or come from the left of the speaker.

And give me the dates again.

1998 to 2026.

I would have said left.

Of the total, 985 attempts come from the right of the speaker, while 952 come from the left.

So it's a tie.

It's basically a tie. The rest come from sort of both, or like the ideology couldn't be identified, right? So 985 to 952. Now, here's what's different about them. So they're not all exactly the same. Efforts from the left typically originate on campus are led by students. Okay, so this is grassroots students saying shut them up, which, by the way, is very different. Now, I was fire president 0405 era, and in that time, most of the efforts to censor people came from the top down, but it really did switch after I left fire students. So, efforts from the left typically originate on campus and are led by students, while efforts from the right typically originate off campus and are led by activist groups, public officials, or donors. Efforts from the left tend to use op-eds, social media, and online petitions to get their message across, while efforts from the right threaten budgets, launch investigations, and demand resignations. Now, where your instincts would be right, Sarah, is that the efforts from the left tend to be more successful. About 50% succeed, whereas the efforts from the right only about 40% succeed.

Oh, I'm also gonna count that as a tie. Like, no, no.

If it's like 40% of 9.85 and 50% of 9 something, it's very similar. So, you know, this is sort of, this is the horseshoe theory right here. This is what we've talked about all the time. And I think that the fact that one side of the horseshoe is in the Oval Office right now can sort of give people a misimpression that maybe the left is less focused on censorship than you realize when you have the rights sort of censor-in-chief in the White House that sort of magnifies an awful lot. But this is really, really interesting data, Sarah.

All right. Well, let's move to the Third Circuit here. Now, quickly, David, before we get to the case we're actually here to talk about, we do have the first federal appellate court to hold an assault weapons ban with a large capacity ammunition ban unconstitutional. This was an en banc panel, 10 to 5 split on the constitutionality of the assault firearms and large capacity magazine ban with 10 judges voting to hold the bans unconstitutional and five judges voting otherwise, as David Latt noted. Four judges joined opinions affirmatively concluding that both bans are constitutional, but a fifth judge would remand for further development of the factual record. Interesting, by the way, David, this was not along partisan appointment lines.

Yeah.

The opinion of the court was written by Judge Freeman and joined by Judge Montgomery Reeves, both Biden appointees. And one of the dissenters was Judge Smith, a George W. Bush appointee.

Yeah.

So, I mean, the Supreme Court has this case. We talked about how it's only the assault weapon side. It's not the large capacity magazine side. The appeals courts to have looked at it so far had been pretty lopsided. And here, Third Circuit coming in at the last minute, Leroy Jenkins.

Yeah, it's very interesting. And I will say this, Judge Freeman has written an opinion that makes a better sense of Brahimi in this context than anything I've read. Okay. So essentially what she did was say, okay, I'm not going to be necessarily, I'm going to be focusing in on the top line. What does Heller, Bruin, Rahimi tell me about the kind of weapons that you can own? And what she did is she basically said, look, Heller says, if it's in common use for a lawful purpose, if we're looking at the category of weapons and the category of weapons are in common use, very, very important phrase for a lawful purpose, also very, very important. Therefore, this precedent that the historical inquiry has already been done in a lot of ways, that the historical inquiry from the Supreme Court, the end point result of it is in common use for a lawful purpose. It's going to be very, very difficult to ban a weapon that has those characteristics. And what she says is in common use for a lawful purpose, not at the time of the founding, but in common use for a lawful purpose at the time of the restriction. In other words, when you enact the restriction. Was it in common use for a lawful purpose? And, you know, I think that from a standpoint of interpreting precedent, this was a very, very sound decision. Because if Heller is essentially saying, okay, the historical inquiry that we're doing results in the following formula of in common use for a lawful purpose, and you've got these assault weapons, which is a very scary sounding name for a kind of rifle that is, by some measures, the actual best-selling rifle in the United States of America, then it's going to basically define in common use for a lawful purpose. And so the opinion itself, I thought, was very well done for an appellate court, because the appellate court isn't reinventing the wheel here. The appellate court is taking a look at all of this Supreme Court precedent. And I thought it was a very interesting preview of what we could be facing when the Supreme Court decides this, because what they may do is something what the Third Circuit did, which is to, rather than doing some sort of, okay, we're going to do the whole brand new historical analysis again, they could very well do something along the lines of what the Third Circuit says and say, we've already done historical analysis and results in this formula. And so I think that's why I found the case to be very well done, very well crafted, or the opinion very well crafted in light of the available and often confusing precedent.

Will be interesting to see if we have any cross-ideological crossover at the Supreme Court as well. All right, David, but here's the case we were waiting for from the Third Circuit. Dr. Norman Wong is an academic cardiologist. He worried that race-based affirmative action in medical schools and hospital residencies discriminates against some minorities in favor of others, could violate the law, and harms the very doctors whom it tries to help. So he wrote and published an article explaining that, including, like, lots and lots of charts and graphs and data and the whatnots.

nobody really cared about this article until for months for months until they did and boy did they

care then this was immediately after the death of george floyd and his bosses also all doctors got real mad so one of the doctors tweeted what his boss doctor i don't know what else to call these people boss doctor um tweeted that it quote misinterprets data and misquotes people and is scientifically invalid and racist. She then authored a tweet on the hospital system's cardiology department account, which she controlled, accusing Wong of using, quote, misquotes, false interpretations, and racist thinking. Two days after their tweets, these two doctor bosses emailed Wong that, quote, any educational environment in which you partake is inherently unsafe, increasing our learners' risk for undue bias and harm. They banned him from any role teaching fellows, residents, or medical students. Boss doctor number one had already tweeted to hashtag med Twitter, reassuring other doctors that the students were safe. Over the next three days, the medical school's dean and boss doctor number three sent hospital and school-wide emails denouncing Wong's article as hurtful and offensive. As a result, Wong suffered. He was uncomfortable going to work because longtime colleagues stopped talking to him. he cleaned out his office other doctors worried that he might kill himself and the police even called to see if he was being harassed and david he brought a defamation suit and in defending their tweets and public statements about his article i couldn't believe this they did not assert truth as a defense, as in they acknowledge that he didn't misquote anything or anyone and that he didn't misinterpret.

the data. They just said that it was an opinion and it was all part of sort of academic debate, sort of fair play, and therefore could not be defamatory, but not that what they said was true. I admit, David, I was stunned, though there's a bit of a theme here with the case we looked at last time as well. The theme is the timeframe, right? There's this moment where all these things were happening we were talking about this on the podcast about like how obviously bad these things were and that the lawsuits would start coming well guess what david the lawsuits have hit the appeals courts and a lot of people are going to pay a lot of money for things that they did in this fever as you say where people are in these like group think bubbles whether it's alaska airlines or this you know university cardiology department where they just convince themselves that they are at the end of history. They are the only ones who can be right. And anyone who disagrees with them must be stopped by any and all means possible because we cannot allow these ideas that I disagree with to be out there because they cannot be in good faith. The only explanation for disagreeing with me is racism. Yeah. I mean, this is such,

it's like reading this opinion. It's like opening a time capsule, Sarah. Yeah, it really is. And, I remember we were podcasting and writing in 2020, 2021, and just stunned at how every bad idea from the academy that I'd ever heard in my entire life and decades of litigation against colleges and universities suddenly somehow became received conventional wisdom, not just in the academy, but in corporate America as well. And, you know, it's interesting, there's been a political and cultural backlash to it in the sense that, you know, one of the big reasons why, you know, the Democrats, quite frankly, were not able to turn the page on the Trump era is because they were weighed down by the enormous anchor of all of this incredibly woke intolerance that a lot of people identified with the Democratic Party and people hated it. And so there was this political and cultural backlash. But I would submit that it is the legal backlash that will make it less likely that this comes back. Because, you know, you have you have ebbs and flows of, you know, you know, political trends and intolerance that just happens. You know, you'll go through a backlash and then there's a backlash to the backlash, but it is liability judgments, the liability judgments, eye-popping dollar figures and checks written are the things that lead a legal department, say, five years from now to say, yeah, I know we're in the middle of a hothouse atmosphere, but this is what the president says, and we're going to be writing big checks if we do this.

you better stop. Well, if you remember in the Alaska Airlines when it was the lawyer who said one of the most actionable items, but I'm not sure I agree with you because I don't know that this has come fast enough, right? We've talked about in criminal justice that deterrence is certainty and speed of consequence. This speed of consequence just wasn't fast enough so that I don't think a lot of the people put the two together, right?

Oh, interesting.

Four, five, six years later?

I think of it as institutional memory. I think of it as, in other words, if I'm at Penn and I have written a giant check, or if I'm at Pitt, or if I'm at Alaska Airlines, or if I, you know, whatever, if I've written a giant check. Yeah.

But I don't know. But I agree with you. There'll be a whole new set of lawyers, and this won't have seemed like a, I don't, I'm concerned that we need to rely more on the cultural and political safeguards of disagreement

and we should not rely on legal memory. No, I wish we didn't have to. I wish we didn't have to. But I do know and I have seen that, you know, once you do establish a precedent on campus, my general experience is they will attempt, they will try a new avenue more so than they will just do a battering ram at the old method. But one of the interesting things about these biased response teams is in many ways, they're a response to losing speech code lawsuits. So if you couldn't actually punish someone for their speech through a speech code, because those have been struck down, unenforceable, big attorney's fees, checks written, then they were like, well, we won't punish but will educate and voila bias response team to come educate you rather than punish you which has then led to an entirely different

round of litigation surrounding that. So they'll often bob and weave and try new methods. But I also hope that there is such a thing as legitimate public shame. And this institution should feel public shame for this. This is pathetic. You read the facts, it's pathetic. I mean, honestly, it's hard for me to have more contempt for a legal position than the idea that when you state that someone misinterprets data and misquotes people that, oh, that's just academic jousting? What? No. Sorry. No. That is defamation. And you will get what you deserve.

Basically, the district court had held that he could not move forward with his defamation lawsuit and the appeals court reversed that and said that, nope, this was not academic jousting. This meets the standard of defamation. Although to our New York Times versus Sullivan, Guess what? Dr. Wong is a limited public figure and he will have to prove actual malice, though. I don't think that's particularly hard here. Not a huge lift there. Nevertheless, if he's a limited public figure, then like everyone's a limited public figure. OK, David, when we get back, we're going to talk about once again, the spirit of Aloha. So Aloha until we get back. all right justice todd eddins 62 year old member of the hawaii supreme court he was a trial judge worked as a public defender criminal defense lawyer in private practice both handling 125 jury trials winning several notable acquittals this david was an interesting case it was about a defendant who had been convicted in 1989 of kidnapping and sexual assault based on scientifically discredited forensic evidence, namely the hair and fiber as evidence that experts for a time were saying that they could distinguish with a lot of certainty from other hairs and fibers. And it turns out not that much certainty. And so we have seen a lot of these convictions come back, though most of them, frankly, before this, because we've known this for a while. But nevertheless, this is on, let's hope, the tail end of revisiting some of these. So this is a five justice Supreme Court. One of the justices wrote a concurrence talking about Glossop. David, this was a death penalty case that has been up and down to the Supreme Court like a gazillion times and was sort of settled once and for all last term. And like, It was just a mess of a case. We talked about it extensively. And this justice is like, well, based on Glossop, blah, blah, blah. Here is what Justice Edens had to say in rebutting that concurrence. The concurrence's insistence that the prosecution's knowledge concession in Butler counsel's adoption of stone in this context, like its reliance on Glossop, ultimately depends on the premise that federal constitutional doctrine controls this court's interpretation of Article 1 Section 5 of the Hawaii Constitution. It does not. We interpret the Hawaii Constitution on its own terms. The United States Supreme Court's construction of the federal due process clause does not define the protections of our state's due process clause. Could have ended there, David. That is a completely accurate and highly important legal statement for a state Supreme Court to make. Right. But it didn't end there, so I will continue reading. This court reasons independently, untethered from the Supreme Court's analysis of the United

States Constitution. Um, I don't know, untethered might not have been the word I would use, because it might, you know, to the extent the Hawaii Due Process Clause was based on it, but okay, I'm not going to nitpick that one. But we continue. The court that now defines federal due process does not honor the work of 1954. It revives the work of 1857, the work of 1896. The Constitution must be interpreted according to its true intent and meaning when it was adopted. He also notes in a footnote, although it is apparent, it is also worth noting that the majority voices disdain for recent United States Supreme Court rulings on issues that are not pertinent to this case. Which is hard to believe because for the next nine pages, again, of this opinion about fiber and hair evidence and granting a new trial and the harmless error standard under the Due Process Clause of the Hawaii Constitution, we go through Dobbs, Calais, Citizens United, Bruin, 303 Creative, Slaughter, and Barbara, the birthright citizenship case. I'll read you. David, see if these sound familiar to you in cadence, tone. Mm-hmm. We follow principles, not agendas. That is not blindness. That is white sight by design. Billionaires spend to be repaid. Everyone else just votes. Federalism is not a formality. It is the architecture. That is not defiance. That is the design. Does that sound like a style of writing that you've been hearing a lot recently?

uh that does sound sounds like ai voice it does sound like ai voice uh but we should not cast dispersions in the absence i use m dashes sarah yeah so do i okay david i have said this before

about conservatives and liberals at the u.s supreme court and i will apply it now to the hawaii supreme court write a law review article yeah no problem with that although this wouldn't I don't think this law review article would have been accepted because it doesn't actually really say why any of those decisions were incorrectly decided as a matter of law. There's a lot of banging the table and outrage. I mean, I read those quotes to you, but to get through, I mean, I just listed some of the top level cases that he attacks, but all in all, we're talking like a dozen or more Supreme court cases that he says were wrongly decided, which is why the Hawaii Supreme Court will now interpret the Hawaii due process clause untethered from the U.S. Supreme Court. You can't write a good law review article in nine pages about a dozen or more cases because you don't have the literal word length to say why they were incorrectly decided as a matter of law. You're just saying you don't like the outcome. And David, I guess my overall take from this was like, wow, in 50 years, someone in this argument is going to be wrong and someone's going to be right as sort of a cultural historical matter. Yeah. Like Dred Scott, like Plessy, like Korematsu. I would just, I would not be so confident that I'm right because the way that you wrote this is going, and if you happen to be on the wrong side, the way that you wrote this will be the thing we point to with Oliver Wendell Holmes saying three generations of imbeciles are enough in the eugenics case. You will look like an immoral piece of stuff. And that's why I think it is a good idea, particularly for a justice to approach these kind of debates with a certain amount of historical humility, because you don't know which side you're on 50 years from now. So why would you presume you're so right and they're so wrong that there'd be no other reason for someone else to come out differently on those cases except for corruption and racism? because I don't know. I'm just not sure about anything that I believe enough to write this way when 50 years from now, someone's going to read it and everyone might've decided I was wrong. Three generations of imbeciles, it turns out, I never want to be the one who wrote that line.

Well, and this is an arrogant opinion. We take no guidance on the meaning of due process from a court that gutted due process protections in dot, dot, dot Dobbs v. Jackson Women's Health Org. Okay. Let me just say this. If you're going to look at a case as your proof positive that this court doesn't, you know, is just out of control. Dobbs is the one when Roe, the decision that Dobbs reversed was critiqued across the political spectrum, when it first came out, including very vigorously by one Ruth Bader Ginsburg. Okay. So we're not talking about holy scripture. Roe v. Wade was not holy scripture. It was a heavily critiqued, very far reaching opinion that was doubted whose wisdom was doubted by none other than Ruth Bader Ginsburg, even 20 years after it was decided. And so to then be in the arrogant position to say that it was so obviously wrong that it's going to be a reason why you don't listen to the Supreme Court, the Supreme Court's imperious ideology does not stop at due process. The same jurisprudence has cratered democracy itself. What? So this is exactly what I was talking about earlier in the podcast.

It's almost the perfect encapsulation of this whole podcast. It's the culmination of the thesis.

It is the culmination of the thesis. And it also goes back to something I was talking about earlier, how perversely enough, some of the most educated people, sort of educated in the sense of...

not just like the degrees that they have, but also that they try to stay informed about politics. So it's only an educated person, like somebody who's on the power curve of following politics who would read a Hawaii Supreme Court opinion. And what would that educated person take away from this? Well, if they're sympathetic to the left, they're going to take away from it as, oh, look, I have another data point from another court buttressing my opinion that the Supreme court is completely out there, out of control, illegitimate. And of all the people who should know better, these people should know better. Absolutely. Now, one quick thing. Some listeners might have like had an eyebrow raised when you drew that sharp distinction between the state due process protections and federal. Basically, the way this works is that a state due process clause can provide more protection than the federal due process clause. It cannot provide less. A state free speech clause. A floor, not a ceiling. Exactly. State free speech clause can be more speech protective. It cannot be less. So that's why that statement was, yeah, they do interpret the state due process clause independently of the federal or they can, but they don't have total autonomy because they cannot provide fewer protections. Okay, David, I need you to really focus here okay i'm gonna focus i haven't been focused i don't want to talk to the david that

likes every single movie and tv show that he's ever seen i want to talk to the david that can discern why that david is unhelpful okay and do a little bit better i'm not asking for you know a movie critic david truly i don't think that's possible i don't think i can get that person but let's just can we move it that person doesn't exist 10 and i want to ask you about the experience of seeing the odyssey and imax and like please if you give the same review you gave of aquaman you will destroy your credibility like if all movies are the same and amazing then no movies are amazing you can see my point right yeah okay so i will tell you this to begin

I made a mistake. And here's the mistake. I originally had two tickets to IMAX. And then I found out that my son and his girlfriend could come and there were not two more tickets. Did you see it not in IMAX? I saw it in 4D. Sarah, do not do that. Yeah, that seems like a mistake. Yeah, that was a mistake. So I thought, okay, I want, what's an immersive experience if I can't get the other two IMAX? Well, 4D. And for those who've not done it that's like the seats move and like water goes in your face and all of that stuff like i'm not even kidding like when an arrow is fired there's like a burst of air past your ear like the arrow is missing your head it's distracting that is just it's distracting okay so i had to fight through this distraction to like really watch the movie and i will tell you this okay the atmospheric sort of the combination of like the cinematography and the music and everything just um very different from Oppenheimer you know how Oppenheimer it felt like the music was sort of crashing into this it was very dramatic that happens here some but I felt like it you know I felt like a lot of it was creating a a sort of an ominous sense throughout the entire the entire movie that was just very, very immersive. And the other thing that I would say is by the end of it, I realized, oh my gosh, the marketing totally reversed the message.

Yeah, but you tweeted the message, right? Careless people, basically you will reap what you sowed.

Yeah, but the tagline when it first came out was defy the gods, right? So that was the tagline, defy the gods and it was sort of like it created the sense of bravado and then actually it was like defy the gods are you making good choices yeah is this the right call here dude and it really was all about consequences it was one of the most small c conservative movies that i have seen in a long time. And that is actually very sort of consistent with a lot of the Nolan. Batman is very small C conservative, very small C conservative, you know? And so it was this very small C conservative story about recklessness, pride, arrogance, the pursuit of power, the defiance of divine law. And it was incredible. And by the third act, it All right.

all came crashing down on me, like what we were watching. And it really was this, like, as I said, I tweeted out heedless people, you know, you will suffer for what you destroy. And, and I don't want to, you know, look, it's a several thousand year old document. So do you say, we're not really doing spoiler alerts here. Not really spoiler alerts, but it's obviously a spoiler on Nolan's take on this several thousand year old document. But the way that it ends really is a sense of, if you defy the civilization making norms and rules and laws, you will crack open the gates of

hell. Literally, literally. But a very, you know, Burkean Chesterton's fence message there.

Oh, yeah. Yeah, absolutely. And it all comes together in Odysseus' monologue at the end with Penelope. And it's powerful. I was just sitting there watching. I was like, I wish every, there's about 15 world leaders I would wish would be sitting there on row C on IMAX listening to that monologue at the end. because we are in the process of breaking things that should not be broken. People mock this concept of norms and morality. I was at the liberalism conference this weekend and a guy got up and he said, well, if one side is breaking the norms, if one side is in this, you know, if you're in the side of liberalism and liberalism is upholding norms and illiberalism is breaking norms, well, aren't you sort of like being tied, you know, tying one hand behind your back by continuing to uphold norms. And I said, and I, I answered the question by saying, where as the norms break, is life getting better or worse? It's getting worse. And so I'm on the life, not sucking side of the ledger here. And that means upholding norms, even if it requires sacrifice to uphold these norms and moral rules. And I would just say to that young guy who asked that question. Just go see The Odyssey. You know, just go see it. Sit with it for a minute. Think about it. Meditate on it. And get back to me. I thought it was just remarkable. It's just

remarkably well done. All right. With that, David, the next episode, I've got a lot of different things to talk to you about. But one of them is Professor Jack Goldsmith's piece on subpoenaing reporters when something has leaked. This administration recently did it. Who's legally on the right footing? And frankly, who's morally on the right footing? Professor Goldsmith had a provocative take on it, but one that actually is legally not all that provocative. So we'll talk about that next time. Bye.

Woo!