Get Off My Plane - Guests Eugene Volokh and Vikram Amar

0:00Welcome to another episode of a Marcus Constitution. Andy Lipke here with Professor Achille Mar and a special guest. Today we're very pleased to welcome Professor Eugene Volok, who is the Thomas M. Sybel, senior fellow at the Hoover Institution, as well as Professor Emeritus from UCLA School of Law. And he's an expert on many things, but in particular first amendment law, copyright law, and other tort law criminal law, but for the purposes of today, first amendment law. And the reason that we are so happy to have Professor Volok, is because you guessed it. President Trump has been in the news regarding possible first amendment issues, questions of free press, free speech, and so forth with regards to some of the networks that cover

1:05the White House and cover the presidency. Welcome to Marcus Constitution, Professor Volok. A great pleasure to be on. Thank you. Thank you. Let me tell our audience a little bit more about you. Some of you may have heard this before about Professor Volok, but he has an interesting biography. He graduated from UCLA at age 15 with a bachelor of science degree in mathematics and computer science. It's interesting to me because I was originally a computer science major. In fact, later he attended the UCLA law school and he clerked for Judge Alex Kaczynski on the United States Court of Appeals for the Ninth Circuit and then for Justice Sandra Deo Conner on the United States Supreme Court. Later he went to UCLA where he was a professor of law for many years and now he is at the Hoover Institution. He's the author of important textbooks including the first amendment and related statutes, which is now in its eighth edition, and academic legal writing.

2:06And he, like Professor Maher, has written about 100 lower-view articles. And so he's just to say he's quite distinguished. He also maintains an important blog on the Internet, the Volok conspiracy, which you can access at Reason.com. And on that blog, which I read frequently, he addresses first amendment issues frequently. That blog is characterized by, I would say, a diversity of opinion. Steve Calabrazi is posted on that blog in the past, frequent guest on our podcast. Okay, so thank you, Professor Volok. So why don't you tell us a little bit about what's been going on lately with President Trump and the press? A lot's been going on. He's been suing some in the press. He's been trying to exclude others. Politically, maybe one big story. Legally, it's many very different stories. Last week, the administration ejected basically CNN, Politico, and MSNOW from the left.

3:10And of course, they're still remain perfectly free to cover, despite that ejection, or remain perfectly free to broadcast about and to write about to the president, just not from the White House. And I take it that the administration's theory could be described as basically, hey, this is a government office building. You can't go into this government office building unless we let you. And we just don't want to let you. Turns out, though, there is a good deal of case law on the question of the access to the White House. It's from the DC Circuit, so that's the Federal Appellate Court, which is in charge of appeals from the District of Columbia, not from the US Supreme Court, but it is binding on the DC District Court before which CNN, MSNOW, and Politico move for a restraining work. And that case law says basically to them. One is that the president can decide who goes into essentially his offices, the Oval Office, therefore, is one, which is like a flying office.

4:10He could say, look, I don't want to talk to you. I don't want you in my office. And he can do that based on viewpoints. There was a case last year where he excluded the Associated Press from the White House Press Pool. They had the Associated Press at two reserved spots. It had privileged access to the White House Press Pool, one for a reporter and one for a photojournalist. And he didn't like their refusal to call the Gulf of Mexico, Gulf of America, by the way, I would endorse that refusal. I don't think I've ever called the Gulf of America, and I don't think I ever will. But the DC Circuit basically said, I oversimplify here, but basically said, look, he's entitled to pick and choose who goes into his office. On the other hand, some 50 years ago in 1977, the DC Circuit said that when it comes to access to the White House that is much more broadly open to the press, not broadly open to everyone, to be sure of it, just to the press. Places like, especially the main press briefing room, that is something that is a kind of

5:12forum, essentially, not a public forum, but still it's a place from which the press cannot be excluded based on viewpoints. And there has to be some sort of process under the due process clause before a reporter can be kicked out, can have his credentials taken in it. And that's what's been in play the last couple of weeks. When CNN and us now in political were excluded from the White House as a whole, the judge promptly issued a temporary restraining order saying, no, you need to let them back it, especially to things like the press briefing room. On the other hand, when the administration followed up saying they are excluded from Air Force One, CNN is excluded from Air Force One, I don't think there's been a follow-up challenge today, but if there is, it'll probably fail on the strength of last year's decision. So that's just an example of how the rules in this area can be complicated. Again, if it weren't for access to a government office building, it would be pretty simple. Of course, those organizations can talk about the president and the White House and can express any viewpoint they want.

6:12But when it comes to access to the White House, the rules more complicated. So you mentioned the word forum. You said that the press room is a forum of sorts in a way that perhaps the overall office and Air Force One are not. It seems to me that you could distinguish between those three areas in a variety of ways. You could say it was very limited capacity in the Oval Office. There are things that go on in the Oval Office other than press briefings and interviews. It's the president's probably, he needs a place that's his office where he can do his work. So you can make those arguments that have distinguished the Oval Office from these other places. And Air Force One, it has a bigger capacity. The president has his own area of the plane where he's segregated from the press. So that's not really a factor. And then you have the press room. The press room doesn't have capacity either. It may have a large capacity, but I could envision a scenario where not every member of the

7:13press that wants to get in and can fit. And maybe they don't go to a bigger room or something. But you mentioned that it's a forum. So does that imply, I'm trying to get to some base principles here. Does that imply that kind of discussion or back and forth goes on in the press room in a way that it doesn't elsewhere and is that relevant to these considerations, to these issues? So the answer is not really. Government property according to the Supreme Court is broken up into several different categories. Maybe at least five. On one side is what it's traditional public for. That is a place that is open traditionally to the public as a whole, the speak on variety of topics. Classic example is a public park or the sidewalks on a sea street. There could be content neutral time, place and matter restrictions like you can't go into the park at night, perhaps, or you can't have such a big demonstration on a sidewalk that it blocks access.

8:14Or you need a demonstration permit before having a large demonstration even in a park. That generally speaking, the government can't exclude people based on their viewpoint or the content of their speech or on probably other factors like it can't exclude people because of their identity. You can't just say you can only be in the park if you are a taxpayer or resident of the city. That's probably going to be unconstitutional. So then there are other categories as well, but the most relevant here is something that sometimes called a limited public forum and sometimes non-public forum. The two are actually a little different, but the rules there are the same. Those are places that are either open to a limited set of speakers or listeners for limited set of purposes or just are open for non-speech purposes, but are accessible by some members of the public. Many government buildings qualify, especially as non-public forum. Custom rooms in universities may qualify as limited public forum if the university

9:16is open them up for student groups. So there the government can exclude people based on their identity. Students can come in others can't. Press can come in others can. Can also impose content based but viewport neutral restrictions, maybe no vulgarity or something like that. We're not sure, but that's a possibility. But it cannot discriminate based on view. So the DC Circuit has basically said that the main press briefing room is a non-public forum. It can say, look, you can't have a demonstration there. If you're a reporter, you might not be allowed to just shout out questions. You have to wait to be recognized. But you can go there and you can listen alongside other reporters and you can't be kicked out based on viewport. And then there's another category which is sometimes called not a forum at all. That is a place where the government gets to pick and choose what is said and who is allowed including based on view. And again, that's what the court said last year in the APK-CAPB Budowicz. It said that basically the Oval Office and Air Force One, you make an argument that Air Force

10:19One should be treated differently, maybe it should be, but the president talks about both in one sentence really several times. Those are not for at all. Those are places where the president can say, I like you. I like your views. You get to travel with me. You get to come into my office. I don't like you. You don't get to come on my plane. You don't get to travel with me. You don't get to come into my office. But so I get that's in the precedent, but what is the basis of that? In other words, what does that have to do with a free press or the principles of the First Amendment or content-based and content-neutral? I understand distinguishing the Oval Office, but why is it that the president can't then, somewhat from the press room, other than that the court says so? What is the reason for that? What does that have to do with a structure of freedom of the press? It might not have that much to do with a structure of freedom of the press.

11:19It does have to do with the courts' understanding of the entitlements of government-efficient. You might think of a spectrum. One end of the spectrum is a government official deciding who to talk to, just whom to give an interview to. There is actually a case. I involved with the thing Baltimore Sun and then Maryland Governor who is essentially said actually not only wouldn't he talk to certain reporters, but the people in his administration can't talk to those reporters. But the clearest example is when somebody says, I just don't want to talk to you. Why? I don't like your viewpoint. You might be my political enemy or I might think you're just extremist. I think you're a racist or I think you're a socialist. I just don't want to talk to people like you. Government official is entitled to say that. It's true he's acting in his official capacity, but even in his official capacity he is still a person who is entitled to pick a choose whom to talk to. On the other hand, if the government official gets up and talks to an audience of hundreds

12:21of people, maybe there would be less entitlement to pick and choose exactly who is in that audience, especially if he is speaking on the government dime on government property. Some line, if I'm right that the polls one should come out in favor of the government official, having the right to pick and choose them, the other should come out in favor of press rights to be there alongside other members of the press. Then somewhere the line has to be drawn. The court tried to draw the line so I completely arbitrarily, but in a way that you can imagine other lines being drawn. I think the sense is when it's a small office, it's a place where the person usually just sits and works. There's a small office and there are only a few people there and the events there begin to look more like conversations and less like kind of public speeches. Then that's treated more like the government official just saying, I don't want to talk to people whose viewpoints I don't like. I don't want to give an interview to them. On the other hand, if it's again a very large gathering, again I think there are hundreds

13:21of people in the White House press room, that kind of concern is seen as less important. To be sure, if you look at the effects on freedom of the press, you might say, the president's power to pick and choose who he's going to give an interview to could affect the press's judgment. It could lead some reporters to soft peddle certain things because they don't want to lose access. As I understand it, that's the way that White House press score often works is you want to keep your access to the president, the others. Maybe even more, want to keep your access to lower level people who might talk to you off the record and give you juicy items, but even though that may have a bad effect perhaps on the press, it's still something that we think politicians are entitled to do to pick and choose who is going to be in their special favor for these kinds of one-on-one or one-on-a-p you get. So is there a component of freedom of the press that has to do with access, maybe not this particular access, this specific access? We tend to think of freedom of the press, many of us, as the ability to publish, if

14:25regardless of viewpoint, to not be censored before you publish something, that sort of thing. But is there an element of it that also means that you have to have access to some level of information, some level of the government as part of these First Amendment rights? Mostly no, but sometimes yes. So the Supreme Court has said essentially that the First Amendment is not a freedom of information. There is a freedom of information at the federal level. I believe there's similar statutes, sometimes called FOIA, and sometimes Public Records acts. I believe it every state, certainly a little overwhelming majority of all states, but access to information that's held by the Executive Branch, by various agencies, that is a statutory matter. It is not a constitutional matter. And the government can say certain things we won't give you access because there's secrets, maybe national security secrets, they may be part of the deliberative process, like it

15:27could be memos for people who are in the Executive Branch who are trying to make up their minds about something I want to be able to talk candidly to each other without public exposure. And sometimes it's because of privacy of individuals about whom government keeps records. By the way, the legislative level, you'd think the legislature would always be open, but the legislature's are titled the closed session, Executive Session, and they're entitled to keep various documents secreted. Certainly within each legislator's office, I'm sure there are lots of internal documents that are kept secret. The one exception, the one place where the Supreme Court has recognized a right to access to government records, has to do with the judiciary itself, both at the federal level and at the state level. There's just such a long tradition, the Supreme Court said, of open courts that are open to the public watch and with records that are open to the public, that the first amendment should be seen as basically institutionalizing that tradition. Supreme Court has made that clear as to right of access to criminal files, and lower courts have generally said the same with regard to right of access to court records in criminal

16:29cases and to trials and records in civil cases. But outside of that special right of access to the judiciary, no, the First Amendment doesn't protect a right of access to government documents or government buildings and the left. Although tying it back to this case, once the government does provide access to the press to certain places like the press briefing room, maybe then it wouldn't be allowed to discriminate based on viewpoint, although it's a once, it can just press briefings all together. So I think that's a distinction. I think a kill wants to jump in here. But I think that you were talking about there's some information might be classified and they're allowed to do that for various reasons, but they maybe they can't do it in a way that is discriminatory on the basis of viewpoint. In other words, if they decide, okay, this information is going to be made available, then it has to be made available in a way that doesn't discriminate on the basis of viewpoint perhaps. Yeah, I would think that would be quite a plausible argument, say for example, this

17:30on public records act says you can give this information unless we think you're anti-American or unless we think you're racist or anti-gay or anti-trans or whatever else. If your purpose is to spread racist propaganda, we won't give you this information. Yeah, I think that would be probably an unconstitution. So I last the point here, a kill and then I'm looking forward to you jumping in. One might argue that information includes the behavior of the president, his reactions, his tone, things like that. And if people are gaining access to being by being in his presence to determining thing, to comment on things like his mental state or how angry he is about something, or that sort of thing, and some reporters get to judge that and others don't, let's say it's not televised for argument's sake, that's part of information that's being made available. But in this case, I would say maybe you could make an argument that there's viewpoint-based denial to that sort of information, just a thought.

18:32It's way more right of access to I get to have an interview with the president where I get to evaluate his mental capacity because somebody else got an interview. You could make an argument that you should be able to have that. I just don't think that's supported by current press. Okay. A kill? So our audience will remember that we often feature emphasis on originalist arguments. Let me identify just a couple of things in the Constitution that are relevant. Audience members, we have America's pre-eminent doctrinalist on issues of the first amendment, especially at least on issues of speech and press as our guest. I've known Eugene for a very long time. We've been friends for a very long time. Eugene, I think one of the very first things you ever wrote was actually in response to something that I had written. I think you were 12 years old at the time or something.

19:37Eugene is a prodigy, but Eugene and I have been friends for a very long time. We're really honored to have you here. And Andy, I'm not sure you quite told our audience. Most people do know it, but the volic conspiracy which Eugene found it and he's not the only family member involved in the project is to Vickamar's part of my world, leans right. It's coded conservative. And audience members, we want to bring you the smartest people across the spectrum. So in general, Andy, we don't try to discriminate in this podcast on the basis of viewpoint. In that, we bring at least people the best on the right and the best on the left on their podcast, but we often feature originalist takes on things. So first principles, just want to identify some differences between, let's say, courts on the one hand and let's say the presidency on the other. We can also talk about the third branch, the legislature, but here's the language of

20:40the sixth amendment. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. And that talks about the right of the accused, but in a very important case, actually, the Supreme Court was open to the idea that the public also has a right to a public trial. And the ninth amendment stands for the proposition that not all rights are expressly enumerated and the enumerated right might be the accused rights to a public trial, but maybe the accused can't waive it in all situations because there's a broader public right. I think it's footnote six of a case in which Larry Tribe argued for a public's right to access to a public trial. And I think it's the most important reference, perhaps, in the opinion of the court, and much it was a majority opinion that might have just been for a plurality of justices, but the ninth amendment is mentioned. The fact that there's an accused right to a public trial doesn't mean that the public

21:40more generally doesn't have a right to a public trial. Above and beyond whatever first amendment rights, there might be. These were arguments about the fact that the sixth and the ninth amendment. And we are skeptical of everything in the judiciary being closed off. The judges can do certain things privately in chambers, in Latin, some people say, in camera, which is a Latin word, or chambers, but we're somewhat skeptical of the idea that everything that courts do can be done in camera in closed chambers. There's an historic revulsion to British or English practices that were known as a star chamber. So certain things are done in open court, their public, and Andy, you and I have the beneficiaries of that because we have seen oral arguments, which take place in open court. Now, there are other parts of what courts do that are in camera in chambers, conversations of judges and justices with law clerks.

22:42And Eugene, of course, was a clerk on the Supreme Court and on the United States Court of Appeals for the ninth circuit, conversations among judges or justices themselves in conferences that are private. But there is an important component of the judiciary that has always historically been public, and that word actually appears in the Constitution itself and the sixth amendment. Now by contrast, Andy, when we had our friends, Stephen Smith, on the podcast several episodes ago, and he talked among other things about American presidents. That wasn't the only thing that he talked about. He talked about all sorts of statesmen, not just in America but elsewhere. Oh, the words associated with the present are historically from, let's say, the Federalist papers are a different set of words. We've mentioned them, I think, before in previous episodes. Secrecy is one of those words, energy, secrecy, vigor, dispatch, and paradigmatically, some

23:48of the things that presidents do are actually quite secretive, diplomacy, military planning, espionage, and the rest. Not everything, the president is elsewhere in the Constitution required to, from time to time, give Congress information on the state of the Union. And that's a, a paradigmatically, very public event. You could call it a public forum of sorts, if you like. But presidents historically have been understood as doing different sorts of things than judges. Presidents sometimes act unilaterally. They can get private advice, but it's one person. Judges rarely act unilaterally at the end. Yes, a trial judge might, but ultimately courts of appeals are on panels. We talked about that in previous episodes. The Supreme Court is nine justices, typically working deliberatively. But what Eugene is telling us is some things that presidents do are permissibly secretive.

24:50And some things that judges do must be public under the sixth amendment. And there are always going to be lines drawn somewhere. And I think you make a very nice point about Air Force one. I haven't thought about it a lot. On the one hand, you can say much of Air Force one is the press and it's big and they're sure for the press. And the president's office is in a different part of the plane. Then the hand you can say, it's a plane. It's still a pretty enclosed spot. The president, when he's actually going back and forth, is going to bump into people. And he can be in his oval office and never have to interact with anyone in the press room because the White House is a bigger place. This is a smaller place. In what ways is Air Force one like the press room? And what ways is it more like the oval office? And it will always be borderline questions like this. This is what I mentioned before. There will always be first space. The joke is, Yogi Berra said, jeez, if you can only move first space one foot, you get rid of all the closed plays. No matter what, there's going to be first space.

25:51There are going to be clear cases on each side. Eugene says, at least according to the DC circuit, the clear cases are that the press room is one thing and the oval office is a different thing. And now the question is, what about in between things like Air Force one? We're always going to have those questions. The lines are always going to seem a little arbitrary, perhaps, determined perhaps by tradition, which is a little circular. The press room is a room for the press because it's always been that way. The oval office is a private space because it's always been that way. And by the way, for example, in fourth amendment talk, we talked about reasonable expectations of privacy. Some of those are defined just by past practice and tradition. And there sometimes is a touch of circularity in how these different domains are defined and bounded. Eugene, what do you think? Yeah, I think that's absolutely right. I came into law from being trained as a mathematician and then as a computer programmer

26:52where there are logical rules behind everything and they are followed in math very rigorously. You don't need enforcement, the laws of math and force themselves. And then I get colossal and some parts seem logical. It's not like logic is alien to the law, but it's a different kind of logic. There's a famous line from Justice Oliver Wendell Holmes, who was also in addition to being an justice also, a kind of a big picture legal thinker, which not all just this is our or aspire to be. And he said abstract propositions do not decide concrete case. How could that be? Isn't that the whole point of an abstract proposition is that it decided concrete case? And then it took me a long time to understand what he was getting at. And there's another famous line that he had, the life of the law has not been logic. It's been experience. So there's some things that aren't that can't be deduced from first principles. In fact, most things in law are influenced by first principles, influenced by a certain

27:55kind of logic. But are not dictated in some way by it. And a lot of it just has to do with this is the way we've done it. There are other ways of doing things, but this is the way that we have done things. And in law, that's often a very powerful argument in a way that in philosophy, for example, and certainly mathematics, it is not. So in light of that, in light of this notion that experience and custom has something to do with this or past practice, you mentioned due process. And it seems to me that one component of due process has to do with how things have been done before. So. So. And so the tradition on Air Force One, the past custom, has been that the press themselves determines who sits on Air Force One. But there are a certain number of seats. And among those who have passes to the White House, the press selects who sits in the

28:5813 designated press seats on Air Force One. So in this case, that's a deviation from that practice. And it would seem for no reason other than viewpoint. So how do you think about that in terms of what you've been saying? So I think just as Holmes would have been the first one to say that, yes, the life of the law has been, has not been logic, it's been experience, but there are different experiences that sometimes bear on the same issue. There are different customs in it. So I'm not a historian of Air Force One, but it may very well be that there's been a custom of allowing the press to select who's in the press pool. But there's also another custom, which is that government office buildings that access to them is controlled generally speaking by the government officials who are in charge of those office buildings. And government offices, even more so that too, is a custom. So the question is, which custom governs?

30:01And what's complicated, again, in First Amendment law, there are ways of kind of thinking about that. But that's one reason why we do have a system of precedent, because sometimes there's a quote's famous justices, a contemporary and friend of just Holmes is just as brand dice at one point and said it for some questions. It's more important that it'd be settled, they'd be settled right, that you just need to have a rule. And this is the rule that the precedent seems to have come up with. Again, it's consistent with the bigger picture of First Amendment ideas about what's a forum, even if a non-public forum, what is not a forum at all. But in any case, that's the decision. If the decision last year had come out a different way, I'd be telling you a different thing. But as I try to tell you, he was quite right. I'm a debt journalist at heart. I try to tell you, this is the law, which is simply the way we do things around here. And you could imagine two equally plausible legal rules. It just happens when we're chosen over another. And again, the thing to keep in mind is, there are all of this talk in First Amendment

31:05Law about how viewpoint discrimination is bad. And in many areas of First Amendment Law indeed is bad. On the other hand, in other areas, there's nothing wrong with it. For the classic example of government speech, or the government decides what to say in its own voice, that's inherently a matter of viewpoint discrimination. The government is going to express views and supporting certain things by war bonds and list in the military. It's not going to say things like the opposite. Be a pacifist. Never do anything to help the war effort, right? It has to pick and choose which viewpoints to express. Now this is a somewhat different matter. It's not the government choosing which viewpoints to express. It's a government official choosing whom to talk to in kind of closed-current fines. But again, that too, I think historically has been seen as something that presidents have been entitled to do. And the fact that in recent decades, many presidents have exceeded to leaving that decision to press organizations, that's not enough in the courts view to overcome this

32:07bigger picture custom of presidents choosing whom to talk. Eugene, let's talk about, let's make a slight transition to government speaking rather than deciding to whom to speak. Yeah, you can have some ads and they're paid for by taxpayer dollars saying, by war bond, and you have these taxpayer subsidized spots that are basically ads for Donald Trump. That's been an issue that has just been, and I don't know all the details. And Eugene, you, I'm sure, know more about those details. I don't know. What do you think about that? So I have heard about these ads. My suspicion is that I wouldn't like them. There's a lot about President Trump. I do not like this. And probably the ads I wouldn't like. And the idea of having those ads I probably would much care for. But as a general matter, indeed the government gets to choose what to say, there might be some narrow exceptions if it really does say vote for this candidate, vote against this

33:10candidate. This issue sometimes comes up at the state level where their ballot measures can, a school board, spend government funds to promote some ballot measure that would provide for more money for schools. Maybe some courts have said no. Maybe not as fully as a constitutional matter, but as a matter of state law, a matter of the powers of the school board. On the other hand, it's basically, look what a great guy I am. Look how much I've accomplished. That's historically what the franking privilege has been. I understand it with regard to the religious leaders that they get to distribute, at least used to be the case, I think it's still now, distributed without paying for postage, to their constituents, their views on things. And almost invariably their views are spun in a way that makes them look good because that's what politicians do. They don't express the view that they did something bad. Rather than, as I understand it, rather than drawing some line between, this is too flattering

34:10to yourself. So you're only allowed to say things that are further removed from you personally. If there is, rather than trying to draw that line, if there is a line here, I think the line is basically chiefly vote for me versus voting or vote against another guy, may be forbidden, it's not even clear, but I'm a wonderful fellow, generally speaking. There's nothing unconstitutional about it. Now whether there are possible limits in the particular conditions attached to appropriations that Congress has appropriated, that's a separate matter. I just don't know the statutory scheme here. One way of putting it is there's no establishment clause, generally speaking as to political speech. Establishment clause is still religion, at least at times has been interpreted, whether the court is still prepared to do this. Now it's not clear, but at times has been interpreted as saying, look, you can't say, this is the true religion, this is the right religious view. There is no such establishment clause where they're guided to political speech. The government can say, here is the ideology that we think is the right American ideology.

35:13And your ideology, socialist ideologies, racist ideologies, pro-trans ideologies, anti-trans ideologies, they're just wrong. It's entitled to do that, and likewise it's entitled to sing the praises of government officials, maybe with some exception for kind of overtillition. I think we might all agree that the president has a first amendment right to speak and to voice his opinion and that sort of thing. And then we might all agree that the press has a right to say what they want to say. But to what degree is it necessary that there be an open discussion of facts surrounding the president? Now I understand that what you've both said about there are areas of the presidency that are secret, but let's just put those aside for a moment and deal with those areas which we can agree are not secret. And it seems to me that the president, while he has certain rights like every other American, there might also be certain responsibilities towards the press beyond those of every

36:16American. So for example, Achilles, we've had a lot of discussions about the unitary executive, and the president's right to be able to have people that serve in his administration that follow his policies and that sort of thing. And one of the justifications for that comes in the federalist papers where they say that I think it's Hamilton. It says the president will be judged based on the actions of others. And that the people in order to make their decision need to be able to hold the president accountable in certain ways that others are not held accountable. It seems to me that one of the functions of the press is holding the president accountable so that the people can make an informed vote. And that's inevitably going to involve people that don't think so highly of the president holding him accountable. So is there any kind of special responsibility to make room when it comes to covering the president for a variety of opinions?

37:17And what do we have to do in order to make sure that happens? In other words, you say the president has this right, the president has that right, but what about the people's rights here? There are a lot of important things in political life that are decided politically rather than judicially. I think it's a great idea if the president pox to the press. It's a great idea if he talks candidly with a president from, as I understand it, just talked a lot more with a press than President Biden had. But it's candid or not is a different matter. But he certainly has made himself available. He hasn't made other facets of his administration available. What's the right answers to that? I don't think there is a constitutional mandate. I don't think there's a statutory mandate on the, as to the president of providing access to the press. But I think there's a reason he talks to the press because I think all presidents recognize

38:20that politically they want to be able to get their message, their side of the story. And if a president is seen as trying to conceal too much, then that's going to look bad for him politically. That's going to look bad for him the next election. He's laying ducking out off a reelection. It's going to look bad for his party. It's going to look bad for his campaign agenda. So I think all these questions about responsibility are perfectly sensible questions to error the political process to say, why is this president kicking out these reporters he dislikes from covering him even as to certain things? Isn't that a sign of weakness in his part of his understanding that he is politically weak as in a sign of kind of petulence and pettiness, perfectly plausible positions to take? But it doesn't mean necessarily that judges should be ordering the president to allow someone in the White House. Or, by the way, the judge did, and I think that is correct in the DC Circuit, Kexlo, but you could imagine he's going to conjure you. And you can certainly also imagine the current rule we have, which is that judges aren't going

39:23to order some of the president to allow someone into the Oval Office or on to Air Force One. Or again, have a one-to-one conversation with him. So a lot of the things you're talking about, I think, are really important things, but that are subject to kind of political constraints and not to judicial. OK, let's talk for a minute about the judges' ruling in the TRO that he issued here. So as you mentioned, this was founded on a due process claim, not a First Amendment claim. Does that mean that if the president now offers process here that he says, OK, we're going to have some sort of hearing or something like that, and then we're going to decide whether or not you get to stay here, and our hearing is going to be based on whether we like what you say or something like that. That's process of a sort. Is that the end of this TRO at that point or the judge didn't really reach a First Amendment argument? Is that right? So I think that might be the end of the TRO. I just don't think it would be the end of the case.

40:23So the TRO says we're, I'm only going to decide based on the due process clause charge because that's enough to issue the this temporary restrained order. So you didn't set up clear rules about what's allowed and what's not. You didn't have a hearing as to whether those rules and let's say that the administration says, OK, finally clear rules are you have to cover us in a way that we think is fair. And we're going to have a hearing and that the hearing we're going to decide, you covered us in a way that we think is unfair. So we're going to take over your press. That's not a violation I think of the temporary restrained order because process has been offered. But then what's going to happen is CNN is going to come back and say, your honor, we're going to move for another temporary restrained order because now our main argument is going to be on the first amendment. And now you're going to have to reach this issue that you didn't reach before. And I think the judge would say, OK, this precedent that I relied on the talk about due process for 50 years ago and reaffirmed just last year as to the access to the main press briefing room. And also talks about the first amendment.

41:24See, your entitled TROs to the first to them as well. Just so happens that this particular restraining order was focused on the facts as they were back and the dispose of them. It was enough to decide just based on the due process. But that's all of the court decided. But if me be, I think the judge would decide in CNN's favor as to the first amendment. Again, as to the main press briefing room, not as to access to the Oval Office for Air Force One, which is what's most recent within Deny to see. I think from the point of view of the citizenry, American citizens that were unhappy with the action that the president took, were probably unhappy with it because they felt that these news outlets were being punished because of their approach to covering the president. They're still being punished for that, OK, because they're not getting on Air Force One or whatever. So from that point of view, it's not really a vindication of that principle, is it? In the end, you're saying that isn't really a principle, OK?

42:24And one thing that Eugene also said is, even if judges don't enforce a certain principle juridically by law, it may very well be that politically these things actually backfire. And one of the reasons they backfire Andy is press outlets like this very press outlet, Amarq's Constitution, today are talking about all of this. So that's, this is perverse in a way, perhaps precisely because we're highlighting all of this. The judges don't need to worry about it quite as much because while the president is going to pay a political price for this, and we are part, Andy, of his paying that political price just as last week, we wanted judges on the eighth circuit who we thought were misbehaving to pay a political price when we named and shamed them bluntly. So part of what I heard Eugene say is, even if the president were using taxpayer dollars

43:28to promote his own party's re-election prospects, very proximate to an election. And even if that really did cross the line, it wasn't just e-patriotic, but actually vote Republican, vote against those Democrats. Even if it was that bad, if it's very blatant, one thing maybe Gene is saying is, that's that, even if it's unconstitutional, even if judges don't deal with it, oh, if the press itself covers that, it backfires big time. That's an interesting thought that I think Eugene was hinting at before. At least as the potential, it may be ultimately the typical voters doesn't care as much as we think they ought to. But certainly there are these political constraints, and for again, for most things, there is a political concern. And the other thing again to keep in mind is there are all sorts of things that, all sorts of principles that at some point run up into other principles. For example, academic freedom. We want academics to be free, to speak their mind without being pressured, not to say

44:31certain things. And in public universities, that's actually a first amendment principle, because it's the government offer. So if somebody had fired me from UCLA, because I had written some law of your article, or written some op-ed or some blog post, that expressed views that most of my colleagues disagreed with, or that the administration disagreed with, that would have been that. Now, on the other hand, let's say I had decamel ambitions. I wanted to be a D. I should stress. I would never want to be a D. That's what somebody was saying. I handed that idea D. I would refuse to be a D. Demand or recount. Exactly. It is. It's tremendously important job, but why not completely temperamentally unsuitable? Imagine I wanted to be a D. And then it turned out, it was pretty clear that if I expressed certain views that alienated the administration, or maybe even alienated my colleagues, I wouldn't be a D. Maybe there'd be some pressure on me than not to express those views. But I don't think we'd say there's any unconstitutional about that, because there are other principles

45:33involved other than just academic freedom, one of which is that the D. naught have the confidence of his colleagues, and I'll have the confidence of the administration. And the D. naught to be popular, at least with certain boundaries. If he says something that makes him really unpopular, that may make him not a very effective team. Right? So if all we cared about is eliminating any possibility that a professor at the university would feel the pressure to say something that he thinks is wrong, that we might say, you could never consider a person's political views or public statements or his popularity in deciding whether to make him. So we care about other things too. So as a result, this principle of academic freedom, which would extend to making sure that people don't get fired from their jobs, doesn't mean that they can't be denied a dean ship, or why even be removed from a dean ship, if the administration says, look, you're just too controversial to be a dean, you still keep your tenure at a appointment, but we need somebody else running the law school.

46:33They're entitled to do that. So again, it's just a reminder that important principles, even constitutional principles, defend, run up against other principles. I've been asking you about this particular case, and I'm trying to push back a little which is what I do in these interviews. But what would you say that your perspective on the current controversies we've discussed is representative of the broad mainstream of the legal community? What would you say that there is a powerful argument being made on the other side? Maybe you feel it's not correct because you believe your argument is correct. But what's the best argument on the other side that you've heard? I think you're asking several questions. One, is it part of the mainstream of the legal community? I can't tell you that because the legal community is a couple of million lawyers I think out there, and I certainly don't have my finger on their balls. Is it representative of the mainstream of law professors?

47:34The mainstream of law professors is probably if the scale of 0 to 100, 0 far left, 100 far right, 50 dead middle, if the country is roughly at 50, then law professors at the US are probably roughly around 30. It varies from school, but on average, probably like that. On most things, I'm probably not representative fully of the mainstream. But what about the mainstream of people who know first amendment law and who are aware of it precedent? I think they would interpret the DC Circuit precedence the same way that I do, because I think they're pretty clear. I think they would say yes, under current DC Circuit precedence, the judge was right in saying that reporters can be excluded from the White House without due process, that the judge would probably decide, and that's my view as well, that they couldn't be excluded based on viewpoint from the White House because that's that Cheryl V. Knight precedent from 1977, just reaffirmed an APU boot of which last year. And they'd probably say that the judge would say that Trump could exclude people from the

48:35Air Force One, because that is in fact with the panel majority in the DC Circuit last year said again, it's complicated, they're procedural details, but I think most of them would say yes. Now where they would come out of what they think the law ought to be, can't really be confident. Maybe that's a yes, the president shouldn't be able to exclude people based on viewpoint even from the Oval Office, even from Air Force One. I think that probably say he can pick and choose whom to give exclusive interviews to based on view, but maybe not from the press pool. It's a good question. I'm not really sure. But it's hard to tell because a lot of law professors aren't really knowledgeable of on the subject, not other than people who are knowledgeable haven't found them. And Eugene, what's your view about where the median vote on the Supreme Court is where this issue ultimately to get up to the Supreme Court, either in an emergency docket, shadow docket, non-text, or ultimately on the merits after full briefing or something like that.

49:39You clerked for Justice Sandra Day O'Connor. When she passed Eugene, we did a tribute episode in her honor. It was entitled Sandra the First. I hope we did justice to her legacy and her memory. That was our intent. She quite famously was the middle of the court. As she went quite often, the court went a swing, justice, so to speak. What's your view about who the swing, justice, on the court might be? What the alignment would be left to right, so to speak, since you mentioned zero and a hundred. And who would that swing, justice, be in your view, and what would they say if you had to predict? Yeah, it's hard to know for sure. So the court today is generally thought to be six, three conservative to liberal. That's right. You're going to accurate way of putting it. Recognizing that it's imprecise it only tells you so much, tells you something.

50:40And the six conservatives might be broken down to three more centrist conservatives, bandit chief justice Roberts and justice is Kevin on beret and then three more conservative conservatives, justice is gorsuch, Alito and Thomas, although even there, especially on free speech issues, the breakdown might be different. So as a general man, everybody on the court takes a pretty broad view of people's right to speak just on their own, using their own property. And you're not using government, Robert. I think that there's very broad protection for that under under for First Amendment law. And in fact, I think both just as in the left of the right generally endorsed that one example is child's be salusory. You may recall the case about about sexual orientation and gender identity conversion therapy where the court ruled eight to one in favor of the right of licensed counselors to do to engage in that kind of talk therapy, even with minors.

51:41Only one justice, just as Jackson would have held the restriction. Justice is Kagan and Sotomayor had a separate concurrence, but on the bottom line they agreed with the conservatives. And I think that's true in a wide range of areas, not everywhere, not as to sexually theme speech when minors are involved necessarily and such, but still pretty broad views. But when it comes to speech using government property, speech of government employees, a lot of conservatives have a narrower view of that. They have a broader view of the government's power to condition the use of its property on accepting certain kinds of restrictions. So it may be that the conservatives will say that decision from 50 years ago the DC Circuit, Charles V. Knight, which said that there is a First Amendment right of access to the White House Pressroom. Nope. The White House is just a government office building and the government gets to decide whom to allow in the government office building. Maybe you can't raise discrimination or some such. But if you were to say, look, we're going to allow people whose views we approve of to

52:44participate in these press briefings and not others. Well, again, the constraint on that is political. Maybe they'll say that maybe not. Maybe not. They do accept, I think, the conservatives on the court accept that there are some limits on government conditions and property, but that's an interesting question. I am quite confident that they would say that when it comes to access to the Oval Office and Air Force One, then that's up to the president. The president can just say, look, I like you. I don't like you. You get to go into my office. You get to be involved in this relatively intimate conversation, even 13. Cohen is still a conversation. That is, it's closer to one on one than one on hundreds. I think that the six conservatives would think that you and maybe even the liberals on it. It is worth reminding our audience that every one of the justices has most likely been in the Oval Office itself in a conversation with the president, with not very many other people in the room. That's not true of maybe the judges in the DC circuit, perhaps on the district, court

53:50and DC, or most of the rest of us. Maybe, but I thought they've all been there with a reporter in the Oval Office. I have never been in the Oval Office. I have been in the same room as the president. I'm sure you have as well, but I mentioned this because it relates to a person who brought up earlier when just as a con or die, that was a funeral, which was the national funeral. And President Biden gave a eulogy for her. Actually, they're in fine job, but I've moved by his role. I know you have to go, press of all I thank you very much for giving us your learned perspective on this. And I hope you'll be available to talk to us in the future when undoubtedly further First Amendment issues will arise. And I hope you've enjoyed it. Always be a pleasure. And those things that I know something about, especially when the First Amendment, would be the like to talk to you. Thank you. Okay, we've got another exciting segment for you, but let me just take a moment first.

54:55For those of you who are hoping to get your CLE, your continuing legal education credit, by listening to our podcast. And thanks to the New Jersey State Bar Association, you're able to do that. Please go to their website podcast.njsba.com and fill out a brief form. And then enter this week's code, which is 40877. That's 40877. And if you're in the States of New York, New Jersey or Pennsylvania, you're done. Everywhere else, you just satisfy your state's reciprocity requirements and you're in almost everywhere else. There are one or two states that don't offer CLE at all or don't require it like Massachusetts. But in general, that's how you get your CLE. Okay. So now we had a fascinating segment with Professor Volok. And now an old favorite is back. Professor Vickamar is here to talk to us about some developments in the Missouri case that

55:59we thought we were done with. So I think that the Supreme Court gave us some entertaining sound bites here or written bites in a precurium opinion responding to the Federal District Court in the 8th Circuit. Is that right? Yeah. Thanks for having me. And welcome, Vick. I don't want to make light of what is a very serious situation. But I do think that the Supreme Court precurium opinion sends a pretty sharp message that the lower courts were not really paying close attention to the Supreme Court's earlier actions. And as a result, the Supreme Court not only blocked or stayed the most recent 8th Circuit attempt to resurrect the 2025 partisan gerrymandered map in Missouri, but the Supreme Court added a sentence or two in the order on Friday that basically said, and don't do anything else

57:01with regard to this map. I'll come up with some other reason to try to impose the 2025 gerrymandered map beyond the reasons that you've already used to try to do that, which is a very unusual thing for the Supreme Court to do to and monitor lower court not to keep fussing with this at all. I remember in the 1990s, there was an execution in California of a very notorious killer named Robert Alton Harris. And he was a very ghoulish fellow who, after killing some of his victims, went back and ate the rest of their lunch, their hamburgers and McDonald's. Anyway, the Ninth Circuit, per Steve Reinhardt, kept staying the execution and the Supreme Court finally not only blocked or vacated the most recent stay of the Ninth Circuit, it basically said the Ninth Circuit shall enter no more stays of this execution. It shall go off as planned. And this reminded me a little bit of that. This was a don't do any more of this business. It's very serious when a lower court doesn't seem to be in sync with the Supreme Court in

58:04that regard. And the Supreme Court had no public dissence. This was across the board, seemingly bipartisan by the Supreme Court. It also shows that the shadow docket is not being used by the Supreme Court to favor Donald Trump. Thrice, they struck down this Missouri districting measure that would have helped the Republicans and further Donald Trump's gerrymandering agenda. And you'll remember also last week, they Supreme Court blocked Trump's order to the postal service to regulate mail-in voting. So four shadow docket cases in the last few weeks that repudiated Trump's legally adventurous initiatives and that all had a very significant effect on the upcoming election. So if the people who are criticizing the court shadow docket as partisan, I think can't easily account for the last few weeks. You said that the courts implied that the eighth circle was not paying attention. In fact, they actually, I think, went further that they were paying attention, but they did it anyway. So they said, for example, given this court's two prior orders in this litigation, our

59:07conclusion that this was error should come as no surprise. And then they said, I'm just trying to find it, but they had another thing we've said that the Secretary of State certainly knew. So at the very end of the opinion, the court says, to the extent that the eighth circuit thinks its action was justified because the Missouri Supreme Court created chaos when in early September it instated the 2022 maps instead of the more recent 2025 maps on the ground that the 2025 maps were not valid under the state constitution. It's really the Supreme Court of Missouri that's created the chaos. So said the eighth circuit and the Supreme Court went out of its way to say, no, don't blame the state Supreme Court. If you want to blame anybody, blame the elected Secretary of State who, as we noted in earlier podcasts, waited eight months before processing the referendum petition and knew that there was a risk that the 2025 maps were not going to be allowed in the fall election

1:00:09and went ahead and used them in the primary election nonetheless for no apparently good reason. So again, another example of this Supreme Court being relatively critical of a Republican elected official in a nonpartisan way. So Andy, this is a short segment because this is now the final chapter of this ping pong matches gone back and forth, both between federal courts and the state Supreme Court in Missouri and between lower federal courts and the US Supreme Court and the US Supreme Court to mix my metaphor slightly and in fact took away the keys of the car from the teenager who was driving recklessly and said, we're not letting you do anything more. We're taking away the keys. We're starting adult supervision. And so this is, there's a lot of technicality that we're not going to get into, but big picture. I want audience members to understand what we are trying to do in this podcast and what

1:01:12we're trying to offer you. So a long time ago, years ago, we said that issues of congressional districting are under the Constitution basically given to state legislatures as constrained by state constitutions as construed by state Supreme courts. They legislatures don't just float independently of their own state constitutions and own state Supreme Court. That was more versus Harper. We were on that issue, Vic and I and we prevailed in more versus Harper. And I want to read, Andy, how the Supreme Court began its most recent opinion because it is just a perfect affirmation of what Vic and I and you have reached on the rest of

1:02:15been saying for years on this. And very recently, we said there's so many reasons why these federal judges, all Republican appointees, several Trump appointees, in the Missouri District Court and the 8th Circuit. So many reasons these folks are way, way off base. They are not listening to what the Supreme Court has said. And we wrote in Scodes blog that we expect and urge a firm bench slap, a quick and firm bench and Andy, we didn't get just a bench slap. We got a beat down. We saw the Supreme Court actually vindicated just what we said they should do and would do. They went out of their way to say you're not listening to us. They went out of their way to actually say there's so many reasons why you are supposed to be deferring to us the Supreme Court and you're not.

1:03:16But I also do want to read the opening passage. Some other passages, Andy, that you read, but it begins with a beautiful exposition of more versus Harper, the repudiation of the independent state legislature theory, state legislatures are bound by state constitutions as construed by state Supreme courts. That's the key. The state Supreme Court gets to decide all sorts of things. Federal courts can't mess with stuff. Federal district courts, especially federal courts. If he is lower federal courts can't mess with this stuff, they should be deferring to state Supreme courts, considering state constitutions, limiting state legislatures. Yeah, just a couple of points. So this independent state legislature theory that is most associated with more versus Harper, that was the original argument that the Missouri Republican officials used try to get the US Supreme Court to block the Missouri Supreme Court's interpretation of the Missouri Constitution.

1:04:21That was the principal argument that was made by the Missouri officials the first time around. This litigation has been ping ponging, as I've just said so many times, that the Missouri Republicans theory has morphed and changed. So by the end of the journey, last Friday, they were no longer arguing the ISL theory. They were arguing a different basis for federal intervention. But in any event, Justice Kavanaugh has initial denial of the stay of the Missouri Supreme Court ruling, who was a repudiation of the ISL theory. And now this makes, by my count, six or seven times a disgruntled litigant who didn't like a state court's interpretation of the state constitution and ran into the US Supreme Court to say, oh, they're violating Article I, Section 4 and the meaning of the word legislature in Article I, Section 4. And it's been done by Republicans as here, but also Democrats. As in Virginia earlier this summer, and in all six or seven of these cases, not a single

1:05:24justice post more versus Harper has publicly bit on that invitation. No justice has accepted that bait, even a single time. So for those who thought that more versus Harper was not going to hold and the court was going to backslide, I think the data is suggesting otherwise now. All right. So as the official orator of all legal documents, I'll read this to you. So in the supercurium opinion, and here's how it starts. In 2022, the Missouri legislature enacted a redistricting map for elections to the US House of Representatives. In 2025, the Missouri legislature enacted a new map. But under the Missouri Constitution, as interpreted by the Supreme Court of Missouri, a new law, such as the 2025 map, does not take effect unless and until approved by voters in a referendum in the next election, at least where as here, the number of voter signatures on the petition

1:06:30suffices to trigger a referendum. Therefore, on September 3, 2026, the Missouri Supreme Court ruled that the 2025 redistricting map quote is not the law and has never been the law unquote in Missouri. And will not take effect unless and until approved by Missouri voters by referendum in the 2026 election and cite to Van Glon versus Hoskins. And sure, as a matter of state law, the 2022 map, not the 2025 map, must be used in the 2026 congressional election. And Andy, that's just a perfect statement of what we have, are you, Vic and I all along that this is to be decided under the Missouri Constitution, as interpreted by the Supreme

1:07:31Court of Missouri. And that is a pure matter of state law, period, end of story done. That's always been our theory. And this is as pure a statement of it, even better than more versus Harper, which had some language that people quibbled with. This is a ringing affirmation of the idea that this is not a set of issues for federal judges to muck with. Andy, can I add one thing? Of course. There's a later sentence as well that I think is actually quite instructive, where the court says that unlike federal courts who are not supposed to be making changes to state administration of congressional elections close in time to the election, the court says that state courts are allowed to interpret state law in ways that serve the state under the state constitution, provided that they don't want to foul a limited federal constraints,

1:08:31not kind of wide-ranging federal limitations, but limited constraints imposed by the federal constitution. So it's on page four of the opinion. Yes. And they're talking about the Purcell principle that you mentioned, which has to do with federal courts. So what they say is, even though, quote, federal courts should not impose changes close to an election, states are free to do. They should be to decide for themselves whether last minute changes to an election are in their best interests, unquote, subject, of course, to certain limited constraints imposed by federal law. And it state courts that determine whether a state has chosen to make this last minute change. And there's nothing in the US Constitution that forbids the Missouri Supreme Court from interpreting the Missouri Constitution the way that it did. But one other point though I wanted to make earlier that I think is important. There are a lot of critics of the shadow docket who will say the real problem here is that

1:09:32the Supreme Court until Friday had never explained itself and that accounts for the lower courts, failure to read the tea leaves. I see two things about that. First is the three judges on the eighth circuit seem to be the only people I knew of who didn't understand what the Supreme Court had done on September 10th. And Robert says this should come as no surprise to justice Roberts. It didn't come as a surprise to anyone other than maybe some of these three judges on the eighth circuit. So I don't know why they didn't read the tea leaves that the rest of us were reading. But tea leaves, secondarily, tea leaves are hard to read when you're deciding how one case applies to another case whose facts might be similar but not quite aligned. This is the same case coming back again. The Supreme Court on September 10th already rejected the very arguments that the eighth circuit relied on last week. What had changed between September 10th and the last Monday of the 21st when the eighth

1:10:33circuit acted? Nothing other than the eighth circuit acted. So that's why Roberts is expressing some frustration because he said we already decided this and nothing has changed other than the fact that the election is even more at the end. It's underway, which is an even stronger argument against federal court intervention. So this was not a matter of difficulty in reading tea leaves because the shadow docket doesn't generate adequate explanations. This is a matter of lower courts just not paying attention or something else. Yeah. So two things. First of all, I think you betrayed your belief that Chief Justice Roberts wrote this precarium opinion. Oh, I'm sorry. That's right. I did. The line about should come as no surprise sounds like his sharp. You're entitled to an opinion and I think our listeners will find it interesting. Number one, and number two. So I think the frustration that you hear in the voice of the court here is not that it

1:11:36should come as no surprise, but that it is no surprise. And they did it anyway so that they did it knowing that this was coming. So why did they do that? And I think we said it last time, you know, well, do respect. They're running for the Supreme Court. They're running. They want to spit in the face of the Supreme Court so that President Trump will take notice of them. And another explanation is here's one. Here's my additional explanation that I'm not going to name names. I'm going to out judges, but I'm not going to name names of commenters, but there were right wing bloggers, right wing commenters who actually were completely misreading, will fully misreading what the Supreme Court was saying and encouraging these judges. And in effect, these commenters were also being beaten down by the justices in this five

1:12:37page opinion. As since we mentioned the judges by name, one of them judge, Strasse, over the weekend, gave public comments saying, gee, it would really be helpful if the Supreme Court justices could be more clear about what they're doing. And as Vick said, almost all of us read it the right way, but there were a few right wing commenters who were egging on the federal judges on the eighth circuit. And they were wrong. I want to register a partial dissent here to what you said earlier and what I said about running for the Supreme Court. I'm not going to speculate about motives. I will say one of the judges on the panel, the presiding judge, is an 86 year old. He's not running for anything. Another one is a 41 year old for whom this was the first sitting as an eighth circuit judge. He had just been installed on the eighth circuit. I don't know what was going on with each of these three judges. Now, whether they should have seen it coming, I'm willing to make a claim on.

1:13:40They should have seen it coming. I'll point out that two of the three judges on this panel clerked for the US Supreme Court. Judge Loken clerked for the Supreme Court in the day and Judge Strasse clerked for Justice Thomas. So two of the three should have familiarity with how the Supreme Court operates and yet they still either didn't or you think wouldn't see the writing on the wall. I just don't think it's the Supreme Court's fault for not having issued earlier opinions because as I said, this was the same case. It wasn't about applying one case to another. It was about what has changed since the US Supreme Court acted, nothing other than that the election is even more hand which cuts against federal intervention. Look, it's true, Vic. We're speculating. It's probably fair to say you don't want to speculate with authority to say this is why. Okay. No, and I kind of did that. Maybe I overspoke and after all, I honestly don't know for sure. I can't have that. No, of course you don't know.

1:14:41And you do know that the 86 year old judge is not running for the Supreme Court's. And Vic, we did mention in our last episode that the youngest one of the three was Trump's personal lawyer and Trump versus United States, the immunity case. Then that's an issue as well. There's one other possible explanation that occurs to me, which is that a few years ago, if someone asked to kill about birthright citizenship, he says that's nine oh on the Supreme Court. Yes, I did. And it was nine oh on the Supreme Court. So things that we've said this, that the ridiculous has become showing up in dissents and here and there. So if these guys see that, so it's take your shot. And that's very unfortunate. Now finally, there's this question of defying the Supreme Court. So in some sense, if they know that this is what the court said and they do it anyway, that is a form of defiance of the Supreme Court. And the court is now saying we're taking the keys away as a kill said.

1:15:43But can they really do that? In other words, is there really anything stopping the court from doing this yet again and getting what would recourse would the Supreme Court have other than to just say it again? If a judge is shameless, then the recourse is pretty limited and Vic mentioned by name Steve Reinhart and he's a yellow school graduate and we knew him and it's nothing personal, but he was rather shameless. He did this again and again from the left from the left, not the right. Yes, we're from the left and the Supreme Court actually tried to call him out and he kept doing it and Vic and I took it upon ourselves to actually highlight this that this was a rogue judge on the left because these mechanisms are so stark. And did it have any effect? His picture was hanging in the yellow law school. You'll have to take that up with Heather Garpkin who was in charge of hanging pictures in the yellow law school, but it no longer does.

1:16:43Let's just say that. And that's because this judge misbehaved in other ways because he didn't have a proper sense of role and restraint. He misbehaved vis-a-vis his law clerk. So he was not properly attentive to his proper relationship to the Supreme Court above him and he abused power of legal professionals below him, namely his law clerks. I do think there's good news here, which is that as Vic was telling this tale of that more versus Harper comes down and there's a little bit of language in there, which is not 100% to our liking. But the thrust of the decision is clear. Yet commentators grab a hold of that language and that little bit of uncertainty is hanging out there based on that. But now this behavior, this bad behavior by the eighth circuit is actually served to put that to bed, I would say. Now this, if you're writing a brief in a case, you're citing more versus aren't you're

1:17:45citing this? Okay. Yes. This for curium, you're citing as well. You may be not because it's not briefing and stuff like that, but it's a shadow docket, but still they did make themselves pretty clear. Those sentences are the best sentences in US reports. I'm with Andy in saying in any case going forward, those are the best sentences I've got on eradicating Bush v. Gore, Root, and Branch. At worst, here's what you can say about those sentences. And then I'm going to quote one of my favorite legal experts. You could say those sentences are slightly dict, but dict makes the world go around. You can't ask for better sentences because they make clear that it's the state constitution as determined by the state supreme court, which is state law, no ifs, answer buts. I would instead cite the fact that Justice Kavanaugh felt confident enough with no public pushback among his brethren or his sisters to deny the first state application, which

1:18:50led off with the ISL theory. And I think I say this all part of one big enchilada and what they did in Virginia, but the point that you said is this is seven times now that they've actually followed our reading of more versus heartbook. And I just want to point out that the opinion is straightforward, but nevertheless, there's so much wrong with what the eighth circuit is done and the district court along the way that it that there was a lot of grist for the mill and Vic covers all this beautifully in this latest just here article as well as the previous ones. And Vic is really your go to source. I'm not just saying that because he's here on the podcast, but he's really your go to source if you want the real nitty gritty and to get your hand around all of the aspects of this case, which was quite a snack down in the end and look in these days of waiting for years for anything to happen with Eugene Carroll or whatever it might be, whatever outrage of the week it might be, it is nice to see some quick and definitive action when it's

1:19:54called for here. And thank you for guiding us through this labyrinth, Vic. Thanks, Vic. Bye folks. Bye. And the kill next week, the Supreme Court back in session, we've got all these things we've been promising we have to catch up with our backlog to. But thank you, kill on the backlog. We still haven't gone through the dissents in the birthright citizenship case. And Andy, our team you and I and our friend, Chris, again, have filed two amicus briefs in the cases that are going to be cited this term. Things about guns, ones about juries, stay tuned. And don't forget we still haven't done the three cases that we thought the Roberts court blew in our rundown of the 20 most important cases. So lots of stuff to do. Yeah. Lots of not to do list. Okay. All right. Thanks a kill. Thank you.