We recap and reflect on the oral arguments in Trump v. Barbara (the birthright citizenship case) and then analyze the Court's recent decision in Chiles v. Salazar, about the First Amendment limits on Colorado's conversion therapy ban. We also confront the taboo question: Are judicial opinions too long?
We recap and reflect on the oral arguments in Trump v. Barbara (the birthright citizenship case) and then analyze the Court's recent decision in Chiles v. Salazar, about the First Amendment limits on Colorado's conversion therapy ban. We also confront the taboo question: Are judicial opinions too long?
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Back in the studio after another successful live show, I think.
Will: Was it successful? Nobody threw anything at us.
Dan: Yeah. I did have a fun little game where I tried to convert the issues in a couple cases into the Up-Goer Five language with only the top ten hundred words. But apparently, the list that Claude was using was wholly inaccurate, which is too bad. [Will laughs] So, next time, I'll try that again. When I was reading it, I was like, “This does seem a little off.” But already gotten an email about that from listener Chris Peterson. So, maybe that experiment will have to be revisited at a future time.
Will: Maybe the top ten hundred words changes over time.
Dan: Yeah, maybe or maybe I googled it, and there's a list that is one of the top Google hits that seems totally wrong.
Will: Okay.
Dan: Okay. So, we are recording on Thursday morning. We just released an episode this morning, and I imagine our listeners were hoping that was our emergency birthright citizenship recap episode, which it absolutely was not. [Will chuckles] It was an episode we recorded last Friday. So, we're never quite as timely as you would like us to be, listeners, but we do our best, and we've got another episode in short succession. Shorter gap than we usually have.
Will: We got to keep them guessing.
Dan: Okay. So, game plan for today, we're going to try to keep it relatively constrained in terms of our ambition. Briefly discuss the oral argument in the Barbara case, the birthright citizenship case, and then dive into what one opinion, Chiles v. Salazar, and that's it. Did you have anything else on your to-do list for today?
Will: No, that should be enough.
Dan: Okay. Great. So, that keeps it simple. So, step one, we had the argument in the Barbara case. So, Trump v. Barbara. So, let's talk that through. I think I can say at the outset that the conventional wisdom is it's now looking like maybe a 6-3 or 7-2 win for the challengers. Does that line up with your expectations?
Will: That seems right. I think it wouldn't be inconceivable for it to be 8-1 or 9-0 for the challengers.
Dan: Justice Alito seemed pretty hostile.
Will: He asked the most skeptical questions. I agree. Again, if I had to bet on a lineup, I guess I'd bet on 7-2. But I thought the argument certainly didn't make me think the president had a chance.
Dan: Sitting in the room.
Will: President?
Dan: Yeah. The first visit by a president to a Supreme Court oral argument, as far as anyone is aware of.
Will: I think that's right. So, I have many questions about this. So, I think he talked about attending the tariffs argument and decided not to at the end. So, my guess is he wanted to attend the tariffs arguments. People told him, “Don't attend. It won't help. It'll just irritate the court.” And then, he lost. So, he figured, [Dan chuckles] A, people were wrong. Maybe it would have helped if I'd been there. And B, [laughs] I lost anyway, so why not? What do you think?
Dan: Worth a shot.
Will: Yeah.
Dan: I would love to have been there to see how he was reacting in real time and see if he was muttering.
Will: Right. So, other questions I have are-- So, it sounds like the court didn't acknowledge him at all. So, they didn't appear on the audio. I think people who were there said there wasn't any official welcome or anything.
Dan: That’s interesting.
Will: Was he allowed to bring a phone? I mean, normally, nobody's allowed to bring a phone in, right?
Dan: I can't imagine they ran the President of the United States through a metal detector.
Will: [chuckles] I assume he had secret service with him who had weapons, which, of course, you normally wouldn't be allowed to have, or what do you think?
Dan: Yeah, I think that's right. Although I remember I was in the courtroom with President Obama during Justice Sotomayor's investiture ceremony, so presidents have come to the court for ceremonies like that. The security was laxer than I expected in that I was able to get in the room as a law clerk without ever having gone through any security screening. Because as a law clerk at the time, at least, I did not have to go through a metal detector to get in the building, and I did not have to go through any additional security to get in the courtroom, which I thought was surprising.
Will: If you really put your mind to this, normally the rule that nobody can have a phone means you can't get real-time advice or whatever and give it to the advocate. But in principle, if the president had wanted to pass, if the president had been checking his phone to see how things were playing or whatever, and then wanted to pass John Sauer a note, do we think he would have been allowed to?
Dan: I can't imagine the Supreme Court police physically stopping him from doing so.
Will: [laughs] Anyways, that was interesting. My understanding is he left a few minutes after the end of the SG's argument. He also posted a truth shortly after leaving the argument, I think.
Dan: Do you have an account on there?
Will: On Truth Social?
Dan: Yeah.
Will: No.
Dan: Okay. Me neither.
Will: Do you think I need one?
Dan: Well, can I go view his tweets without his truths, or I don't know, whatever they're called, without an account? I mostly see them when people repost them on other forms of social media.
Will: Yes, I believe you can. I believe his truth is available for all to see.
Dan: Maybe I should make an account just to claim the space. I feel like you should make an account over there that's like @basedwillbaude.
Will: Uh-huh.
Dan: You could just kind of go off.
Will: Should I post based things?
Dan: I don't know. Do you have a lot of based thoughts that you're not posting? I feel like you must have some.
Will: No comment.
Dan: [chuckles] That's an admission.
Will: Anyway. Some people were quite upset the president was attending the argument? Do you think that was bad, good, indifferent?
Dan: I thought it was strange. I don't have an inherent objection to it. As I understand it, there actually is a seat at the court that is reserved for the President of the United States.
Will: So, people said that.
Dan: I remember being told that when I was clerking and then I'd forgotten that until somebody mentioned it.
Will: Right. Although, as I understand it, he did not sit in this reserved seat, whatever it is. He sat in the public gallery. I think the reserved seat, since the president has previously only intended for ceremonial occasions, it must be for the ceremonial setup. Okay, here's the truth he posted shortly after leaving the argument. “We are the only country in the world stupid enough to allow birthright citizenship,” President Donald J. Trump. So, I take it he was not happy with how it went.
The other funny thing about this truth is that it's off-message because, of course, his position is that we don't allow birthright citizenship.
Dan: Yeah.
[laughter]
Will: He claims to be interpreting the law as it is-
Dan: Yeah, that's a good point.
Will: -and claims that the law as it does not allow the thing he's complaining about. So, now again, as all lawyers, we can understand, “Well, this is my legal position, but I understand this is happening anyway.” But I feel like the message discipline is a little lacking.
Dan: Yeah. That is an interesting fact that I think relates to a larger problem, which is that in a world without consistent rules about citizenship that every country follows, you can end up with these conundrums. You can end up with stateless people. If someone is born in a country that doesn't have birthright citizenship, and is the child of some country that doesn't automatically give citizenship to all children of citizens, you can end up with someone that has no passport.
I think that's deeply problematic. It seems like whatever your views about immigration and citizenship are, we should not have a system where there are some people that just cannot be citizens anywhere. In a world without birthright citizenship, if there are a bunch of folks born in this country who maybe don't have citizenship or aren't granted citizenship by wherever they come from, what happens to those people? Are they just detained forever, or are they just allowed to go about their business but can't really do anything, can't work, can't travel?
Will: Well, many countries might allow you to be present there, especially if you have nowhere else to go, without being a citizen. But just to be clear, it's not actually a fact. There are various news stories immediately afterwards that say there are 30 countries that do have a similar rule to the US rule.
Dan: It is true that in Europe, it's not the way it's done there, at least in most of Europe.
Will: But it's still true. You could imagine there could be people who are born here who don't have, for whatever reason, who are not eligible for citizenship in the country where their parents are from and then--
Dan: Yeah.
Will: Yeah.
Dan: Because they're an illegitimate child or who knows.
Will: Right. But there are all sorts of inconsistency problems that are hard to totally resolve. Like, back in Wong Kim Ark, the precedent that is the most central to this case, at least one of the asserted features of Chinese law at the time was that it was just not possible to lose your Chinese citizenship, that you were just a lifelong subject to the Chinese emperor, whether you liked it or not. And then, of course, other countries do let you renounce. There are a whole lot of conflict of laws conundrums no matter what you do.
Dan: Conundra?
Will: Ooh, maybe. Or, is that one of those made up?
Dan: Okay. It's possible. Yeah.
Will: Yeah. I did think the SG, John Sauer, as a lawyer, did a very good job. He had answers-- [crosstalk]
Dan: Although, he was criticized for seemingly not having some answers to questions that at least the commentariat thought he should have anticipated. Most notably Justice Gorsuch saying, “Do you think Indians today are birthright citizens?” He stumbled on that.
Will: Yeah. So, he claimed then and maybe one or two other times to have never thought about that question before, like to be thinking about it for the first time, which I do think was, that was odd. My first thought was, is that even true?
Dan: Yeah.
Will: You might have thought about it, but then claim to be thinking about it for the first time to excuse yourself for not having a good answer.
Dan: That just seems like a poor argumentative strategy.
Will: I guess so. To lie about whether or not you've thought about something before as Solicitor General seems like a bad idea. That said, I think previous Solicitors General like Prelogar, I think she was almost never surprised by a question. She'd been asked-- I think the SG's office traditionally goes through so many quite aggressive internal moots that the idea of him showing up and not having been asked that question before in a moot really made me wonder, do they not do as many moots as they used to, do the people who do the moots, are they afraid to ask tough questions? Because the general atmosphere of distrust. I don't know. If it's true that he showed up without having ever been asked that question, something that’s gone awry.
Dan: Which is the question that people said you've got to expect from Justice Gorsuch, like, this is maybe, as far as we can tell, the issue other than reining in meddlesome bureaucrats, the issue that he cares about the most, which is the rights of Native people in the United States.
Will: Yeah. Now, I will say the flip side is also true of the ACLU's lawyer. Justice Barrett asked her for the Native American exception. Is it based on whether you're born territorially on the reservation, or is it based on whether you're born to parents who are tribal members? She proceeded to ramble at length without answering the question.
Everybody knows that the status of Indian tribes is one of the historical examples here, and everybody's willing to hand-wave to some extent about what's going on there. But there are basic questions about how that exception works and what the rules are for it that you would think if you were arguing a Supreme Court case, you would at least have figured out what your position was.
Dan: Yeah, I was a little underwhelmed by her performance. I actually wasn't able to log in to listen to the argument until towards the tail end of the government's argument and then the first part of ACLU's argument. I actually came away thinking that maybe the government was on better footing based on that, and I texted you and you were like, “Oh, you missed the first part. Actually, the government's going to lose.” And so, I had to go back and look at the transcript. At that point, to me, just based on the inadequate information I had, it didn't seem like a rout.
Will: Yeah, I agree. In any case, the Justices certainly didn't say, “How dare you come here and defend this un-American policy?” They didn't express outrage towards the Solicitor General of the kind, some of the commentariat might have been hoping for.
Dan: Yeah, but there were some interesting lines in there. You reposted one of them without comment on your Twitter feed.
Will: Yeah. So, one of my favorite exchanges was what to make of the fact that illegal immigration was not really a thing in the 19th century or-- It was later 19th century. There are a few examples, but the current immigration problem was different. And so, Chief Justice Roberts said, “This wasn't a problem in the 19th century.” And Solicitor John Sauer said, “No, but of course, we're in a new world now, as Justice Alito pointed out, where eight billion people are one plane ride away from having a child who's a US citizen.” And then, the Chief responded, “Well, it's a new world. It's the same Constitution.” I think-- [crosstalk]
Dan: Which is funny, but maybe a tiny bit pointed.
Will: I think it's a little pointed. Yeah, I think it's exactly right, of course, that in thinking about constitutional interpretation, the meaning is unchanged and you have to apply it in new circumstances. But the fact that it's the same Constitution means you can't just assume that the Constitution amends itself to contain the amendments we wish it had contained in light of the world we face.
Some people thought that line was clearly prepared, like that [chuckles] he's waiting to deploy that one. I don't know if you have a view about that. And some people thought that line was clearly delivered to President Trump, that the purpose of that line was as a-- I don't know about that either, but it's a good line.
Dan: I don't either. Yeah, I liked it. You seem to like it.
Will: One of my long-term projects is going to be to do a tribute to the Chief, just including analysis of all of his best zingers.
Dan: He's got a number.
Will: Yeah. No, that's part of the fun will be figuring out which ones-- There's obviously umpires, there's obviously the parents involved one, and then exactly which other ones.
Dan: I think there's a good list you could come up with. You should start writing them down now.
Will: I have been.
Dan: Okay.
Will: Okay.
Dan: More to say about that. It does seem like the common wisdom really has centered huddled up around the prediction that the government will lose. Friend of the show, Steve Vladeck, had an op-ed in the New York Times, basically in the headline saying, “The government's going to lose, but then arguing that because of the CASA decision, ultimately the government is going to win in a bunch of other ways.”
The Trump administration will do other stuff that is unconstitutional or otherwise illegal. And here, the government, via John Sauer, had promised at the CASA argument that they would appeal any loss so that there would be an opportunity for the court to weigh in on the constitutional question, even in a world where it was impossible for courts to give universal relief.
But Steve's argument was, “Well, they didn't make a promise about that for all sorts of other issues, and so we should expect to see that. The government will do unconstitutional stuff. People will sue. Maybe those plaintiffs will get judgments in their favor, striking down whatever government action it is. But because of CASA, that relief will only run to that particular plaintiff, and then the government will just let it go and continue enforcing the policy against other people.”
Will: Yeah. Now, I do think it's noteworthy in CASA also, there was universal relief under the lower courts, essentially a nationwide class action using the class action exception to CASA. So, even if the government had not appealed, they wouldn't have needed any of this [unintelligible [00:18:23]
Dan: Yeah. It depends on how much room you think there is in terms of the doors that the court in CASA left open. If it becomes easy enough to get class action certification and to get class-wide injunctive relief, which is not always easy. There’s requirements under Federal Rule of Civil Procedure 23 that not every putative class satisfies.
Will: Right. Now, I think whether this is a problem, though, also depends on whether you're so sure the Supreme Court would rule against the Trump administration in all these cases. Because you can imagine there are other cases where if the lower courts grant universal relief, the court would feel compelled to take them, and upon taking them, there's a 10% or 20% chance that the SG would somehow pull it out. But in a world where it's not universal relief, then Justice can be done in the lower courts and escape the-- [crosstalk]
Dan: But for a small number of people, right?
Will: Well, I mean-- [crosstalk]
Dan: It depends on the scope of what the lower court does.
Will: Yeah. It could be not universal, but still apply to all the people who care about it the most.
Dan: Yeah.
Will: So, I don't know. Obviously, it's complicated how it all plays out. And then, of course, in some places, the real obstacle are where even people who could sue are afraid to sue, because what's at stake. In the law firms that settled or the universities that settle, it's not that they can't get relief, it’s just that-- They could get relief they just don't want to sue. I guess now they don't have the ability to piggyback off of somebody else suing and so on.
Dan: Yeah. So, let's accept the common wisdom that this is going to be not a 5-4. And if that's the case, do you think there's any pressure on the court to have this come out sooner than the final day of the term? It's obviously quite late in the term, and it would be hard to get an opinion out sooner than the end of the term, given that it's April. But is there any urgency that the court might see in resolving this?
Will: Oh, I don't think so, particularly. I also think the court may realize this is an opinion where they're going to score some points. They're going to do the right thing and the popular thing, and I think a lot of their detractors want them to do. So, if they were going to have any to think about the timing at all strategically, there might be some incentive to let it come out the last day of the term. So, it blunts the impact of the destruction of the Voting Rights Act and the immigration cases, whatever else they're going to do that will make people mad.
Dan: Yeah. Although if the Voting Rights Act case goes to the last day of the term, that will have taken a very long time.
Will: Well, it's already taken a very long time.
Dan: Yeah. But that would be like an extraordinarily long time.
Will: Yes, I agree. But whatever, [unintelligible [00:21:11] executor. In fact, yes. I guess if you're at the same time saying you're going to give President Trump, for the first time, consolidated control over the unitary executive, you might want to make sure that shortly after that, you can say, “But don't worry, we're not giving you control over the babies.”
Dan: Yeah.
Will: I do think also before this, I think at least my view was a statutory ruling was maybe more likely than a constitutional ruling.
Dan: Yeah, I was wondering why that didn't get more play.
Will: Yeah. But certainly, it didn't get a lot of play and there were several questions from the Justices trying to get both sides to say, “No, we'd prefer you to decide the constitutional question.” I think the narrowest way to decide it was one Justice Kavanaugh floated, which was-- He got the SG on record saying, “We are not asking for Wong Kim Ark to be overruled even if you read it against us.”
So, you could write an opinion that says, “Wong Kim Ark is against the SG is against the Executive Branch. They are not asking for it to be overturned. We are not going to decide whether to overturn it. Therefore, you lose. And if you want to come back and ask for it to be overturned, you can try.” I don't think they'll do that.
Dan: We got an email in the inbox from listener Jack Wilson asking, “Why did the government not say, as a fallback, if that's really what Wong Kim Ark said, please overrule it?” What do you think about that?
Will: I think there are some times when there's an argument that theoretically would help you to put it on the table. But in terms of optics, it just makes you sound extreme and un-American. So, it's a bad idea.
Similarly, you never ever show up and say, “Look, we think Brown v. Board of Education favors us, but just in case you disagree, we're willing to overturn it.” [chuckles] Even if you make that as your backup, backup, backup, backup argument, your willingness to put on the table just makes it easy to dismiss you.
My guess is given that the conventional view is that the Solicitor General's office is going against all the history and conventional wisdom with this radical, crazy argument, it would seem like slipping the mask to say we want Wong Kim Ark to be overruled. Especially because the truth is they want Wong Kim Ark to be overruled. But the truth is all their arguments suggest Wong Kim Ark was wrong, and they're willing to live with it because it can indeed be distinguished as applying to domiciliaries. But I was struck by this when I taught Wong Kim Ark last week. Just reading the dicta in Wong Kim Ark, it sure seems like Wong Kim Ark has a view about this that is not the president's.
Dan: Which class were you teaching that in? Is that a Fourteenth Amendment class?
Will: Yeah, I'm teaching our con Law Fourteenth Amendment class.
Dan: Cool.
Will: Yeah.
Dan: How much time have you spent on the birthright citizenship issue in the class?
Will: One day. We're only two weeks in six rounds quarters. So, it gets a day for the Citizenship Clause, a day after the Privileges or Immunities Clause, and then we move on to Equal Protection.
Dan: How much did you talk about the pending litigation?
Will: We read Elk, we read Wong Kim Ark, and then we read the executive order and talked about all three. This was before the argument, so I tried to describe what the arguments would be at oral argument, and I think it was pretty predictable.
Dan: Yeah. I'm curious to see the academic discourse about this issue has been unbelievably heated. I think more heated than the academic discourse about maybe any other constitutional issue that's come before the court in recent years. Is that right?
Will: Comparison-- [crosstalk]
Dan: I think more so than the healthcare decision.
Will: Uh-huh? More so than Section 3?
Dan: I don't know. In terms of seeing the vituperative personal attacks that I see regularly on social media.
Will: Yes.
Dan: I feel like I've seen more of that than I've really ever seen in the academy. Just the utter contempt people are displaying for people on the other side of these debates.
Will: Well, isn't the contempt one-way?
Dan: More so. Yeah. But nonetheless, still it's been striking to me. I wonder what happens how-- If the government loses, how people on both sides of those debates react? Obviously, there'll be a spike dance by the defenders of birthright citizenship. How do the anti-birthright citizenship takes age? I don't really know.
Will: Yeah, I agree. It's tricky also, because it does have this dynamic like the healthcare case, where at first the debate was, is this challenge off-the-wall or on-the-wall? Is this beyond reasonable debate or not, which both is therefore inherently contentious? If your position is this is beyond reasonable debate, then people who are debating it are violating a norm of reasonable debate. But it also means in some ways, if you're the contrarian, you've now got a helpfully low bar. You don't have to be right. You just have to show that it's complicated. Now, I do think the people who did that then slid from--
It's one thing to say it's complicated, which is true. It's something else to say that in the end, those complications are sufficient justification to uphold an executive order, which I think is not even plausible. But yeah, I agree there's a toxic character to some of these debates.
Dan: How many constitutional issues do you think there are such that if they were reconsidered, there's no way you could say it's complicated? Because I feel like almost any issue someone comes up with an argument, like, can the president serve three terms? People put on the table this possibility that the president and the vice president could swap places and then the vice president could resign.
Will: Well, there are many things that are not complicated. I think it's not complicated that the president can't just directly serve three terms. I think it's also not that complicated that the president can't run for vice president, because he's not eligible to be president.
Dan: Yeah. But people make that argument.
Will: No, people make claims that are uncomplicatedly wrong. But I was just going to say, now the claim, can the president become the Speaker of the House and get in the line of succession that way? That's when it starts to get complicated. I think a thing that often happens is the object question is uncomplicated, but there's a bunch of adjacent complicated things that don't actually get you there. But if you spend enough time throwing up dirt over the adjacent things, then you can confuse the whole thing.
Dan: Yeah. I just think this is a problem with constitutional law, is that if you get enough motivated smart people together in a room, you can come up with arguments for a lot of things. It's not mathematics, right?
Will: It's not mathematics. One question is, can you come up with plausible-sounding arguments and then the second question is, can you come up with arguments that are in objective fact plausible? I do think there are a lot of things where you can come up with a plausible-sounding argument that is objectively implausible, but that rests on our ability to be able to tell the difference between the truth about the Constitution and what people think about it. And of course, that's very hard and very contested.
Dan: Which side of the line do you think the birthright citizenship issue is? I think you think that the challengers are correct. You've said that to me. But do you think that the arguments on the other side are plausible, or just plausibly plausible, or seemingly plausible, or whatever you want to-- [crosstalk]
Will: I think the defenses of the executive order are not plausible. I think there are defenses of things like new legislation that would be somewhat plausible.
Dan: Because you think the statutory question is not close, regardless of what the constitutional question is.
Will: Well, not just the statutory question, but the constitutional question ultimately turns on jurisdiction. I think it is just not plausible to say that the United States does not have jurisdiction in the relevant sense over any of the immigrants in question who we regularly both give the protection of our laws to and hold to account for violating our laws.
In a world where Congress did something weirder, like treat undocumented immigrants more like we treat Indians or diplomats, then you get something complicated, like, can you expand the category? Is this like it? But the fact that would be complicated doesn't mean this is complicated. In the same way, like, could Congress enact a statute requiring Americans to eat broccoli every day? Maybe that's complicated. Could Pam Bondi herself go personally house to house and force everybody at gunpoint to eat broccoli every day? That's not complicated. The answer is no. The fact that the broccoli question is complicated doesn't mean that it suddenly becomes complicated just if Pam Bondi screams "Broccoli."
Dan: I thought the broccoli question was supposed to be not complicated. Like, it was supposed to be this parade of horrible-type argument where you say, “Obviously not, therefore,” and then it leads you down the path to saying the Affordable Care Act must be unconstitutional for the same reason.
Will: Actually, I think maybe the right answer is, and maybe I spoke too quickly, maybe the eating the broccoli has to be broken apart from the buying broccoli. I think maybe the right answer was Congress probably can make people buy broccoli, but it can't make you eat it.
Dan: Would that be a substantive due process limitation?
Will: Well, also Commerce and Necessary and Proper-- There are economic reasons for Congress to boost the broccoli market by effectively imposing weird broccoli excises and direct taxes or something. But then, if you want to compost your broccoli rather than eat it, what's it to anybody?
Dan: I feel broccoli is the wrong vegetable to pick, because it's out of date to say that it's a vegetable people don't like. I feel like it's actually a pretty popular vegetable. My kids like it. I think it's one of these things where it's a vegetable that people used to make badly, is to boil it.
Will: It's the only vegetable my kids consistently like.
Dan: My kids like brussels sprouts. Brussels sprouts were usually-- In my youth, they were mocked as the most disgusting thing and the reason is because they were boiled. Once you roast them, they're delicious.
Will: I think it's also that genetic engineering means brussels sprouts are better than they used to be. I think they used to be-- [crosstalk]
Dan: That's possible.
Will: I think they used to be more bitter, and they're not as bitter as they used to be.
Dan: That's possible. Although I do think we didn't roast vegetables that much. That just wasn't the 1950s way to cook.
Will: Yeah, look, my kids don't like roasted broccoli, to be clear.
Dan: What do they like? They like boiled broccoli?
Will: Microwave frozen broccoli. Crisp-tender microwave frozen broccoli with just enough salt.
Dan: Salt is key. Maybe I think we didn't salt food enough back in the day.
Will: That's probably true. Okay, should we talk about the other case?
Dan: The actual opinion that we're going to talk about?
Will: Yeah.
Dan: Chiles v. Salazar. This is commonly called the gay conversion therapy case, although whether it's fairly described that way is, I think, arguably an issue in the case. So, lots to talk about here. I don't really know where to start other than saying this is a Colorado law that purports to ban various types of therapy that include, under the text of the statute, “Any practice or treatment that attempts to change an individual's sexual orientation or gender identity, as well as any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions towards individuals of the same sex.”
Will: Mm-hmm.
Dan: That's the statute. This case seems like it's a huge culture war case, which it is to some degree. And so, you would expect this case to be decided on purely partisan lines, which it was not. This is ultimately going to be an eight to one decision with everyone except for Justice Jackson in the majority and saying that this law is unconstitutional
Will: Because it violates the Free Speech Clause, right?
Dan: Yes. The First Amendment. We'll get to the reasons why in a second. It's interesting, because I had the same without having dug into the case, going into the oral argument, I was like, “Okay, this is going to be another flip side of Skrmetti-type case. And it wasn't. It wasn't. Even at the oral argument, I came away thinking, “Okay, this is more a stronger First Amendment claim than I might have thought.” And so, that's interesting.
To get there, we need to explain why that was true. What exactly, specifically, was the Colorado law supposedly doing with respect to the particular plaintiff here, and why did that make it a seemingly easy case for eight out of nine Justices on the Supreme Court?
Will: Right. It's easiest to see also by Justice Kagan and Justice Sotomayor, as you said join the opinion and they write a short concurrence explaining their willingness to join the opinion and to say, “If Colorado had enacted a content-based but viewpoint-neutral law, this would be a different and more difficult question.” So that is, “If Colorado had said something like, ‘It's not a legitimate subject of therapy to talk to young children about their sexuality,’” or I don't know exactly how you would define it.
Dan: Yeah, reading that concurrence, I was a little puzzled by exactly what category of treatments they were imagining.
Will: Yeah.
Dan: Your example may be the best one.
Will: Well, because in particular, the law, as written, forbids therapy designed to change a minor's sexual orientation or gender identity, but it allows therapy that's gender-affirming or affirms identity exploration. And so, in the known culture war between, I guess, conversion therapy versus orientation-affirming therapy, Colorado has picked a side. Under modern doctrine, the worst thing a state can do on a matter of speech is to pick a side.
There are other things that are unconstitutional too, but picking a side and saying this side is allowed to talk and this side, it's not okay. And so, I think that makes it both easier to strike it down and it also makes it easier to see on its face the way this precedent could be helpful to progressive causes in some places. It's not hard to imagine a red state passing a law that also, if you point, discriminates in the opposite direction. Yeah.
Dan: But can we just make sure we explain clearly what the plaintiff was doing and how the law was applying to the plaintiff before we get too deep into the First Amendment question?
Will: Okay.
Dan: So, this plaintiff was not a psychiatrist who was prescribing drugs, doing some of the practices that came into disrepute in the last few decades. The true aversion therapies where you would take gay youth and give them drugs to make them vomit while looking at gay material stuff like A Clockwork Orange, classic movie, where they make Alex unable to appreciate violence as well as Beethoven, electroshock therapy, a lot of things that in retrospect and even at the time seemed quite disturbing. So, this is not what this plaintiff was doing.
The court is very clear. This is an as-applied challenge. I think that there's still some categories of things that this law is going to be allowed to forbid, just not what the plaintiff here was doing, which is talk therapy. Just purely talk therapy.
Will: And voluntary talk therapy, I guess, also. Because some of the aversive things could be done making you watch terrible movies is, in a sense, just speech. But it's different if you force people to watch them than if you-- [crosstalk]
Dan: Well, in A Clockwork Orange, they strap Alex down and they put the things on his eyes, so he can't even close his eyes.
Will: Right. Exactly. So, they're not doing that. So, just to be clear, it's not even talk therapy where you're forced to talk. It's just-- Yeah.
Dan: Yeah. And so, if a client came to a therapist and said, “Look, I am struggling with same-sex attraction. I don't these feelings. I'd like to talk it through and figure out if there's a way forward or if someone had made some steps towards gender reassignment, and then was interested, and wanted to talk about maybe walking that back.” Those would, at least as the law seems to have been interpreted, although I think Colorado maybe tried to back away from that a little bit, would have been forbidden.
Will: Yes.
Dan: And so, a therapist can't have that conversation.
Will: So, I agree that the majority relies on that. That makes this seem an easier case. So, I guess it does seem like there's a ton of stuff done through just speech that we do still sometimes think of in a different framework. If you were a counselor and your shtick was you talk to people and convince them they're possessed by demons and basically ruin their lives because you then convince them to do various things to exorcise themselves, and you do all just talking to them.
Dan: Or, told them to commit suicide, right?
Will: Yeah. Right. Maybe we would say, “Okay, strict scrutiny applies, and suicide is so bad that you shouldn't be able to do that.” I'm not so sure about the demons, depending on what-- If you convince people that you're possessed by demons and exorcise yourself, you just need to buy a membership in your multilevel marketing scheme, or I don't know. Or, lawyers. Like, lawyers do a ton of what we do just through speech.
Dan: Yeah. If you were to, you could be disbarred. If you as a lawyer counseled your clients that the Sixteenth Amendment is a fake amendment, you don't have to pay your income taxes, blah, blah, blah, blah, blah, right?
Will: Yeah. I think even if you were honest, you said, “Look, the courts have rejected these challenges, but you should know they're true, they're valid. I think you'd get in all the trouble.” Now, the court has already rejected some of this path in an earlier case called NIFLA v. Becerra, where the court generally cast a quite narrow view of what we now call the professional speech exception to the First Amendment, which I'm not sure if this is a helpful framing. And so, having done that, this seemed to follow.
Once again, Colorado is trying to say this is a form of licensed therapy that therefore doesn't get normal First Amendment scrutiny, and the court has already said, well, we're skeptical of that kind of thing. But I don't quite understand under this theory what happens to lawyers.
Dan: Yeah, I'm genuinely puzzled by that.
Will: Or, not-- [crosstalk]
Dan: Yeah. What about doctors who recommend treatments that are clearly inconsistent with the standard of care? Like, someone has cancer and they say, “You absolutely shouldn't treat it, because that will make it worse,” and then they die.
Will: Right.
Dan: Are you telling me that can't be forbidden?
Will: Now, again, you could say that to the extent there really is an objective standard of care that the doctor really is wrong about, that's different. And that the truth is this is just such a contested area that there is no objective standard of care. I don't think the majority turns on that, though, and I don't think the court claims to be able to know what the standard of care is and to use that as a basis for constitutional law. So, it's funny. The opinion is, in a sense, totally reasonable eight to one. But is it right?
Dan: I do feel the result on these exact facts feels right to me.
Will: Okay.
Dan: But I do have a lot of concerns about what are the limiting principles here for all the reasons we just talked about.
Will: Right. Again, on the facts, it's hard to see how-- The flip side, if you allow the state to say, talking to people about whether or not they are or not gay and trying to convince them to change course in various ways, that's the thing only doctors can do. It's a thing doctors have to do by doing it our way. Therefore, nobody else is allowed to talk about or express views on this that are inconsistent with our standard of care, even in a one-on-one setting, that seems like a troubling slippery slope.
The same way that if you said to lawyers, we can regulate the practice of law, we can regulate claims about whether the income tax is constitutional, therefore the state is entitled to decide what is constitutional truth and to forbid anybody, lawyer or otherwise, from stating anything contrary to constitutional truth. If you want to claim the Fourteenth Amendment was not properly ratified, that's either the unauthorized practice of law or malpractice. You'll be disbarred for daring to say so. That obviously can't be right either. But I don't know that the professional speech exception and strict scrutiny are the right framework for this problem.
Dan: What would the right framework be?
Will: I don't know. I guess if there is a basis for drawing a line, it probably does have to do with taking on a client and acquiring some a fiduciary responsibility, in a lawyer's context, to a client and in a doctor's context. So, we'd say, in some way, we enter this certain relationship that comes with a responsibility, so you can spout your truth to the world as much as you want, but then there's in some way, when you get into a one-on-one relationship with somebody, we get to have some views on what you say even if-- [crosstalk].
Dan: Doesn't that counsel against the result here?
Will: Well, I don't know. Maybe not every one-on-one relationship, because again, if I have a website where I talk about how we're all possessed by demons, presumably that's okay. And then, you send me an email, even me, [chuckles] presumably I'm allowed to write back. [laughs] Yes, even you. So, I don't know. Again, maybe it's only a subset of relationships. Maybe it's only doctors and lawyers. Although then what are we going to do with the unauthorized practice of law? So, I don't know the answer. Maybe this is just a place where modern First Amendment doctrine has gotten hard to understand.
Dan: Yeah. But I guess maybe those are cases where strict scrutiny applies. I don't know. Or, maybe those are situations where this comes up a bit, where there is a longer tradition of regulation that would put it-- You know, the idea that you can say that lawyers can't give incompetent advice. Maybe that has a longer tradition than exactly what the state was trying to do here.
Will: Yeah. Although if we're going to go to tradition, I think tradition suggests you could get mad at lawyers even for just saying the judges were bad. Someone [unintelligible 00:45:11], but lawyers got in trouble for that all the time.
Dan: Yeah. Okay. Yeah, so, I was hoping that you had some answers here, but apparently not-- Yeah, it's a case that really gets deep into the elaborate doctrinal edifice of First Amendment doctrine. But as a result of that, it just struck me as getting a little bit lost, and I would really like to have stepped back and gotten a clearer answer.
This case, I think I've been radicalized recently about the length of Supreme Court opinions. [Will laughs] I think it is utterly out of control. This one is actually not that long. I'm saying this more, because there's a super long dissent by Justice Jackson. I think we could go back to 10-page opinions.
I'm not sure that would be worse. I just feel like there's this impulse now that you have to basically walk through answers to every single little argument that was made, and then it just ends up becoming so complicated. And that sometimes if you can't step back and just tell me a little bit more simply what's going on briefly, maybe we get a little bit lost.
Will: I'm with you on both counts, and I do think-- [crosstalk]
Dan: I don't think this is a bad opinion. I think this is a Gorsuch opinion. In the past criticized his writing, I thought this was perfectly well-written.
Will: Right. I think you asked this question on Twitter this morning. “Is there an inverse correlation between the length of a dissent and its persuasiveness?” I think the answer is definitely yes.
Dan: Okay. I'm glad, because I got a lot of push-back from people on both Bluesky and X about that. Yeah, what do you think is the most famous dissent of all time?
Will: Ooh, Justice Holmes's Lochner dissent?
Dan: Yeah, which is four paragraphs.
Will: Right. I was going to say, there are outliers. Justice Curtis's dissent in Dred Scott is very long. I think it's effective in part because it's long, because when the majority opinion is nuts and full of a bunch of misstatements of fact and law, sometimes you need to go through them all. So, I think the correlation has exceptions. But I do think, in general, being able to say in the dissent like, “Here is the crux, here is the point, here's the thing they're missing, is much more effective.”
Now, I wonder, though, if part of the issue is, are dissents written to persuade? So, you could imagine somebody who already thinks the majority is wrong, like being more satisfied the longer the dissent is, because it's like, now you're really letting them have it. Whereas maybe that long dissent is less likely to be read by somebody who already agreed with the majority opinion.
I agree with the majority opinion. I want to see what the dissent has to say, “Give me your best argument, but don't give me 80 pages.” But again, since dissents presumably serve multiple audiences, one to persuade people that the majority is wrong, but another to create a rallying cry or to be cathartic or whatever for people who-- [crosstalk]
Dan: I feel like you can accomplish that goal in a shorter opinion, though. The best way to accomplish that goal is to have some good lines in there.
Will: Yeah. Well, the good lines, again, are more likely to persuade. Are they--
Dan: I think they're more likely to give people rallying cries, too. People can excerpt them on Twitter.
Will: The longer it is, the more options you have to excerpt. So, if you just put all your material in there--
Dan: They're more buried.
Will: Well, let me ask you this question. How do you feel about director's cuts of movies?
Dan: It depends on the movie.
Will: Are there any movies where the director's cut, the long version, was better than the short version?
Dan: Maybe Apocalypse Now. Some dispute about that. There's the big combined cut of The Godfather. Godfather and Godfather Part II.
Will: But that version is not longer than the two-- [crosstalk]
Dan: Well, I think it might have some extra scenes. Director's cut of Apocalypse Now, definitely longer. Final cut of Blade Runner I think is maybe longer.
Will: Okay. But The Lord of the Rings, were you a person who thought those were better in the long run?
Dan: No, those obviously needed a lot of editing. Certainly, The Hobbit, [chuckles] turning this 200-page novel into 16 hours or whatever of movies is totally out of control. Yeah, I guess I'm not ready to embrace the argument that shorter movies are always better. But I do think tight editing does help.
The director's cut of James Cameron's Aliens I think is worse in part, because there's parts of the story that in the tighter version are left a little bit to your imagination. The more you explain, the more you show, the less mystery you leave in some ways, which is less narratively satisfying.
Will: This is Matthew Yglesias, who I read a lot, has this as a general theory about the shift from movies to TV. Because the thing is, as TV became good, what's happened is that most TV seasons of prestige TV are essentially 12-hour-long movies. But real movies, even when they're two and a half or three hours long, where somebody was forced to decide in advance where you're going to go, have an arc, stick the whole thing, and do it in three hours are much better art than a shaggy 10-hour movie where maybe you figured out the back half as you were going.
Dan: I think that's totally right. The impulse to have the story keep continuing, definitely, I think ultimately makes TV less satisfying. A movie is supposed to be a complete story, and it doesn't have to end in a satisfactory way, but it is supposed to be a complete story. Whereas I feel like TV shows are the opposite of that. They're supposed to want you to keep going indefinitely. It's like the difference between a full and satisfying meal versus a bunch of just high-sugar snacks that don't actually fill you up.
Will: What about those 12-course to 18-course tasting menus where you got a bunch of little bites but you never really got--
Dan: I'm over those. I did a string of those when I was a law firm associate. They rarely were as satisfying as I wanted them to be and often like, “You just leave. You're still hungry,” or either you feel disgusting or you feel still hungry, it's really hard to calibrate. Komi in D.C., that was incredible.
Will: That was incredible.
Dan: Other ones have underwhelmed me, especially given how absurdly expensive they are.
Will: Right. So, I think the case for, and also against, these long opinions is something like, “Look, I would be happy to include my one best argument if it was clear what the one best argument is.” But either in a world where people come at opinions from so many different assumptions, like different arguments will resonate with different people, or just I, the author, don't really know which is going to land, so I got to put them all out there.
That's why you put it all out there, then you let Bluesky and Twitter zero in on the pieces they really like, you let casebook authors pick which part they think really works. But you, as a Justice, just have to give us all the Legos and then let us construct the best pieces out of it. Oliver Wendell Holmes maybe had enough genius that he could build a Lego machine himself, but maybe we just can't do that anymore.
Dan: Maybe I'm skeptical of that. I think ultimately rhetoric is more effective when you have to make hard choices to pick your strongest points. I mean, a two-hour speech in response to something you disagree with, I think it's just going to be less effective than a really focused 15-minute oration.
Will: This is the first paragraph of the Justice Jackson dissent, so hopefully everybody read that even if they didn't read the whole thing. Justice Jackson leads her dissent with, "There is no right to practice medicine which is not subordinate to the police power of the states Lambert v. Yellowley. This was true 100 years ago, and it should be true today." So, I'm curious what you thought about this line, and I'm especially curious what you think about it coming from somebody who dissented in Dobbs and Skrmetti.
Dan: Yeah, that is a significant question I had, which is, how to line this dissent up with that larger framework. That quote also leaves some things unanswered. First of all, is this practicing medicine, and is this someone claiming the right to practice medicine versus the right to speak in the course of practicing medicine?
Will: And does the police power of the states entail the right to engage in viewpoint discrimination about which speech under that power?
Dan: Yeah. If the claim is that police power extends to a categorical right to regulate medicine in every way possible, yes, then both Dobbs and Skrmetti are arguably wrongly decided, unless you point to some other hook. You say the First Amendment doesn't work, but substantive due process and equal protection work.
Will: Or, they'd be rightly decided, because they came out against the-- [crosstalk]
Dan: Yeah. So, your position in those cases would-- [crosstalk]
Will: Right. Now, is it possible that this opinion is written that way on purpose? So, what it says, “It contains a quote.” Then it says, "This was true 100 years ago, and it should be true today." Is it possible Justice Jackson thinks, “Look, it shouldn't have been true five years ago? Five years ago, I thought we were in the business of enforcing constitutional rights even when it was called medicine, but apparently not anymore. Apparently, not in Dobbs. Apparently not in Skrmetti. And given that, given Dobbs and Skrmetti, today, as of this year, but not last year and not 2022, we should go back to the police power view, because we've already--" Is it possible that's what she means, and she's just cleverly burying that?
Dan: No, I don't think so. Because if you look at footnote 7 on page 21, she reaffirms the dissent in Skrmetti. She says, "Of course, when the state discriminates on the basis of sex and transgender status with respect to the administration of specific drugs, that discrimination implicates the Equal Protection Clause and requires heightened scrutiny for purposes of the Fourteenth Amendment."
Will: Okay.
Dan: So, I think maybe here's the defense I would offer if I was trying to rewrite this a little bit. There are some regulations of the practice of medicine or maybe the practice of healthcare broadly understood, because I don't think this qualifies as medicine maybe, maybe qualifies as medicine, that implicate the constitutional rights of the recipients of care. And that would be Skrmetti, that would be Dobbs, the dissent's position in those cases.
But there's not a right belonging to the healthcare provider. Is that a better way to ground this? Here the whole claim is I'm a talk therapist and I want to be able to say whatever I want to.
Will: Yeah. It's interesting, because famously in many of the abortion cases, the plaintiffs are doctors bringing--
Dan: They are asserting the rights of female patients, right?
Will: Right. But if the fulcrum is going to be the difference between the rights of patients and the rights of providers, it's interesting that we've allied that difference on the standing side. Also, there's a debate, I think, among First Amendment scholars about whether to think of there as being a right to listen that's parallel to the right to speak. And if that theory requires Justice Jackson to think, while there may or may not be a right to say these things, there's no right to hear them, that would be a big load-bearing move.
Dan: Yeah, I guess so. I'm struggling to come up with exactly what her theory is.
Will: I assume her theory-- [crosstalk]
Dan: This is a very long opinion.
Will: I assume her theory is there are right and wrong answers to these questions, like, gender-affirming care is good and real and true, and everybody who opposes it is a bigot. And conversion therapy is false and bunk and nefarious, and everybody who does it is a bigot. And the state is allowed to fight for true things and against bigoted things. The fact that half the country and half the court disagrees with me doesn't make me wrong. I assume that's her theory.
Dan: Yeah. I think support for that is if you look at the opinion, the first substantive section of the opinion, Part 1A, is basically a defense of the medical policy merits of what Colorado did here. That does seem to bearing the weight. And so, I feel like I never got a clear answer in all these pages about the flip-side laws which are the laws that would ban like a-- Imagine an Alabama law that says, “A therapist cannot discuss any gender-affirming care, can only urge patients to remain with their biological gender assigned at birth.”
Will: Right.
Dan: Is there a clear answer to that question in here? Maybe I missed it.
Will: Yeah. I don't know. She talks about the-- So, Casey famously has a free speech holding, because there was also a counseling on speech aspect, and the court says in Casey that it's okay to regulate some of this counseling about abortion, because it's in the state's power to regulate abortion. I don't think she takes the position that Casey was wrong on that point, although she may think so.
So, I could be wrong about this and there could have been something there I missed. I think she's committed to the view that such a law would not get strict scrutiny, but it presumably would still get some scrutiny, at which point the court would have to decide whether or not the ban on gender-affirming care satisfied intermediate scrutiny or rational basis.
Dan: And it would fail it, because of her views on the merits.
Will: She doesn't say that, but that seems like the right way to bet, right?
Dan: Yeah. I found this a frustrating dissent. I feel like there might have been a more effective and shorter argument, because-- I do think there's something here. There's something here that, of course, the state has to be allowed to regulate-- It has to be allowed to regulate in some way the content of medical practice. Maybe this is a little controversial, but I would imagine I would want it to be the case that a state could say, “As a doctor, you are supposed to urge that people get vaccinated, and not say that vaccination will cause autism,” which I think there's pretty close to medical consensus that it doesn't.
Will: I agree.
Dan: Maybe that's not true.
Will: Although, do you think not as to a doctor, but if you think if you were a licensed vaccine counselor and all you did was talk to people who were debating whether to get vaccines, you think it's clear the state could forbid you from saying vaccines cause autism?
Dan: I guess it's a little hard for me to understand exactly what that role would entail. I guess I'm just having a little trouble with the hypo, so I'm not sure.
Will: Oh yeah. Just make the person a priest, so they come into contact-- [crosstalk]
Dan: Obviously not. [chuckles] No, they can't tell priests what they can say or not say, obviously.
Will: Or, a podcast.
Dan: There's no police power to regulate the content of religious advice.
Will: All right. A podcast host who talks about wellness, you have a wellness podcast, you talk to your audience about wellness-- [crosstalk]
Dan: Yeah, I don't think they could forbid that.
Will: Okay.
Dan: When it comes to certain forms of professional advice, I do think the state has to-- In the same way that I think it's hard to distinguish from someone saying things about the law that are just demonstrably incorrect, and inconsistent with the way the legal system works, and not in a client's best interests. I mean, we have to be able to say that, right?
Will: I agree. That's why I think, for me, maybe the most persuasive version of this opinion would have been the even shorter version. It's just something like, on the one hand, obviously, you could stop a doctor from convincing everybody they're possessed by demons. On the other hand, there's a right to be a crank on the street corner, even if you're talking about demonic possession.
[chuckles] For various reasons, from its viewpoint neutrality, to the fact that it's talk only, to the fact that it's a contested issue, this case seems to us clearly on the protected side of the line, and we'll work out other cases as they come up. I guess that opinion wouldn't be very persuasive to anybody. So, you can see why they wrote this version instead. Maybe it's just us.
Dan: Yeah. I did get also frustrated by this dissent, because by the time I got 30-plus pages into it, it was just clear to me that this is a dissent that a good editor could have really trimmed a lot of fat out of. [chuckles] I sent you a redline that I did of the beginning of Part 4 of the opinion where there's just--
In my seminar, we have these writing seminars and I redline my students' papers and they do good jobs, but there's often a lot of words that can be cut out. This is a habit that you get into as an appellate brief writer, which is something I've spent a lot of time doing in my life, where it turns out you can make the same point both more efficiently and more persuasively in a lot fewer words.
Man, I got frustrated here. And to be completely frank, no one knows what will happen now. You could just say no one knows what will happen now. I don't need her to be frank. So, I get frustrated.
Will: I think there are times that writing a little less compactly can be more persuasive. There are times rhetorically or in speech, that there are these famous red lines to the Gettysburg Address to get it down to fewer lines and it's not as good. But there are times that's not true.
I have one other question about this case, which is, actually-- I don't know if you saw this, but Kristen Waggoner at the Alliance Defending Freedom had a social media post, "First Amendment 3, Colorado 0." And then, it has pictures of the plaintiffs in Masterpiece Cakeshop, 303 Creative, in this case. Makes the cake artist, the graphic designer, the counselor, three brave Coloradans represented by ADF at the Supreme Court, etc., etc. Is it a coincidence these are all Colorado cases? Is there something about Colorado?
Dan: Yeah, that's a good question. Because Colorado is not California. It's not the most blue state in the country.
Will: No. Arguably, Colorado is the new California, but California used to not be the most blue state in the country.
Dan: Is that because all the California people have moved to Colorado?
Will: Yeah, that's what everybody says that Denver is ruined by all the Californians and now you got to move to Salt Lake City or something.
Dan: Yeah.
Will: I don't think that's true. Denver's-- [crosstalk]
Dan: Yeah, that's interesting. Yeah, that is weird. I would like to know a little bit more about what's going on out there. One other amusing thing which is that on Bluesky, which has become pretty-- It's the left-wing X. Mark Joseph Stern, who's the Slate columnist who I've tangled with a little bit, who I think is a critic of the court quite consistently, an advocate of a very progressive left vision of constitutional law. He had some posts where he literally just described what the opinion did.
He said, “The decision applies only to talk therapy, not forms of conversion therapy that involve physical interventions and really our abuse. It does not strike down Colorado's law on its face. Actually, it does not invalidate anything. It just holds this law subject to strict scrutiny.” Okay, totally straightforward post.
And then, he got pilloried for being a right-winger from that by the [chuckles] people on Bluesky. He actually posted something initially saying like, "I'm going to stop summarizing Supreme Court decisions on here as they come down. One comment has been plucked out of context of all reporting, misread, and used as the basis of a means of spirited pile-on. I'm not going to subject myself to this. If this was your goal, then congratulations."
As you know, I'm politically hard to pin down, but more of a Democrat than a Republican. That's certainly true. I vote Democrat. I've criticized the conservative court, but it is a little bit funny. Andy Grewal, who I don't often agree with on X, but he had a funny post where he said, “Look, all the left-wingers left X, Dakota, Bluesky to escape the toxicity. But it turns out they were the toxicity.” A little unfair, but-- It does say something about what these social media echo chambers are.
Will: Yes, I guess this also reminds me of the line, "I never thought leopards would eat my face," [Dan chuckles] sobs the woman who voted for the Leopards Eating People's Faces Party.
Dan: One of the all-time classic tweets. Was that a Tumblr post originally?
Will: I'm not sure.
Dan: Okay.
Will: I know of it as a tweet, but-- [crosstalk]
Dan: Yeah. It's something often screen-capped.
Will: Yes.
Dan: Yeah. It's interesting. There's a lot to dislike about X. There's a lot of trash in my feed and there's stuff on there that I think a privately owned company's platform does not have to allow. I would prefer not allow, actually, white supremacist speech. But I do think it is a little bit more ideologically diverse. It's not the case that all left-leaning people have left X. I think it basically is the case that almost no one on Bluesky is right-leaning.
Will: I don't know if that's right, but-- I'm on Bluesky. When I post the same things on Bluesky-- [crosstalk]
Dan: You're a famous lib. You try to disqualify the rightful president and real winner of the 2020 election.
Will: He was disqualified, Dan. It's not my fault that nobody agreed. [Dan laughs] Do you think still the median law professor who's in the weeds and not interested in drama or politics is more likely to be on Bluesky than X? So, there are just values to both platforms, but there is a weird--
Actually, I think the Bluesky thing is weird in that as far as I cans tell, these weird unfair pile-ons seem to happen more to people who are not perceived as conservative. So, I can post on Bluesky and I get ignored, because I'm already beyond the pale and beyond hope. But then, Nick Bagley says something and people will turn on him in weird and unfair ways.
Dan: Yeah, which happened to me with respect to Stern, which I got annoyed, because I felt like he was sub-tweeting me for not being sufficiently devoted, where I was criticizing what I saw as bad arguments on the left, which honestly do frustrate me a lot more than bad arguments on the right. I feel like bad arguments on my side I really dislike, because they make the views that I like less credible, which is honestly why I find Justice Jackson a bit frustrating sometimes, because I feel like she could be more effective than she is. If somebody on the other side is going to be ineffective, [chuckles] maybe I can live with that.
Will: My suggestion, Dan, is to just try to make yourself sufficiently notorious and full of bad takes that everybody is pleasantly surprised when it's not as bad as they thought, and then people also-- [crosstalk]
Dan: Want to get one, right?
Will: Yeah.
Dan: Well, I have to invest in the bad takes for a while to get to that point.
Will: Yeah. Well, I've been doing it for a while.
Dan: Yeah. You've become more selective about social media. I miss the old Twitter. I do like these platforms, although it is not lost on me that in many cases-- There's many ways in which these platforms do make people's work more visible. Dave Pozen and Julian Nyarko have an empirical paper saying that Twitter use does boost citations to scholarship.
But on balance, you think about it, like, for any given law professor who you've gotten to know better via social media, has their social media usage, on average, increased your perception of them or decreased your perception of them. It's probably the latter, on average, which should make me more cautious about stepping into the fray.
Will: Yeah, I do think while social media has corrupted the brains of many law professors, it's maybe not as bad as it's corrupted the brains of many judges who are not on social media, but write things that go viral on social media and sometimes make you worry that they know that they're going viral on social media and want to go viral on social media.
Dan: Yeah. The Lawrence VanDyke opinion, which we're not going to discuss without losing our-- I try to keep the episodes clean.
Will: I think the pile-on on that opinion is unfair.
Dan: I would prefer that judicial opinions not stoop to that level of vulgarity. Look, if you don't know what I'm talking about, listeners, just Google it, okay? I took the position that-- [crosstalk]
Will: Careful what you Google. [chuckles]
Dan: [laughs] Well, if you Google-- Yeah. I took the position that the vulgar rhetoric that he used in that case, which was about a Washington law as interpreted was requiring a spa to admit people to this nude spa who were biologically assigned male at birth and had not undergone physical reassignment surgery.
I took the position that kind of vulgar rhetoric was ineffective in terms if your goal was actually to get the decision reviewed by the Supreme Court and overturned. Maybe it's totally effective if your goal is just to get more publicity for yourself, but I don't think it is-- Then it becomes the case about the vulgar rhetoric and not-- It almost distracts people's attention from the actual underlying issues.
Will: Yeah, I think the court probably won't take it, although I'm not sure. I don't know what the causal relationship is, but--
Dan: Yeah. Okay, well, I think that's enough for now before we go on for too long. We had ambitions going in. We rose to those ambitions, I think. We hit the things we intended to hit. We only gave ourselves two things, and that was sufficient for a recording session that is now stretched on well beyond an hour. And I'm satisfied. Hopefully, the listeners are satisfied. They did get a very short episode previously. It was a 37-minute episode. We had a very tight window with a full day of activities for the WashU admitted students.
Will: Well, now, we've got a little bit more relaxed, studio-paced director's cut.
Dan: [chuckles] The director's cut of this podcast would not be great. There's a lot of long pauses where one of us says something and then we're like, “Wait, is that true?” and then we're typing and checking it, or where one of us says something that's not quite right and we have to say, “Oh, Peter, our editor, can you fix that?” So, there's not a lot of good stuff left on the cutting room floor, so to speak.
Will: No. But I do think one of our most popular, most downloaded episodes of all time is one of our longest. We have a multi-hour Dobbs and Bruen episode that begins to take on The Lord of the Rings-- [crosstalk]
Dan: Yeah. It's not because of the length. How long was that episode? I've forgotten.
Will: It was long. [chuckles]
Dan: Okay. But that was the most high-profile decision in years. Our episode about the sheriff's case also has a ton of downloads.
Will: Yeah. But I think there are a lot of places you can go if you want concise, focused oral discussion of opinions, and there are fewer places you can go if you want rambling, unedited, sprawling discussions, the long lead-in-- [crosstalk]
Dan: That often skip key details. We often talk about a case for an hour without ever actually describing what the case was about and what it held.
Will: So, maybe we shouldn't be quite so-- [crosstalk]
Dan: I feel like we hit it fine this time. You were going off on First Amendment doctrine. I said, “Can we at least say what the case is about first?”
Will: I'm just saying, we need to be a little easy on the Justices. They just write like we podcast.
Dan: [chuckles] We have editors. [Will laughs] If one of the Justices wants to hire me to just redline their opinions, I will do it for minimum wage and I will make those opinions more effective. I love editing.
Will: Fair enough. I should hire you to edit my articles.
Dan: Anytime.
Okay. Thanks very much for listening. Thanks very much to our partner SCOTUSblog for hosting the show. If you like the show, please rate and review on the Apple Podcast app. Visit our website, dividedargument.com for transcripts of the episodes, blog.dividedargument.com for commentary from the wider Divided Argument universe, store.dividedargument.com for merchandise. Send us an email at pod@dividedargument.com and leave us a voicemail at 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors, as well as the University of Chicago Women's Board.
Dan: And if there's a long delay between this and our next episode, it will be because the state of Missouri and/or Illinois have decided to regulate our podcasting licenses because of the content of our takes.
[Transcript provided by SpeechDocs Podcast Transcription]