Open Minds with Jonathan Mitchell and James Burnham - Part I

In the first part of this interview, James Burnham and Jonathan Mitchell discuss his unusual career progression in alternating legal practice and academia, how his experience with consequentialism informs his formalism and textualism, and what's next for the conservative legal movement.

Featuring:

Jonathan Mitchell, Principal, Mitchell Law PLLC
James Burnham, President, Vallecito Capital, LLC

Episode Transcript

(00:00):
Welcome to Open Minds, a freedomof thought podcast series interviewing the people who
bring courage and independent thought to thechallenges of today. All right, Hi
there, I'm James Burnham and we'rewith here with Jonathan Mitchell. It's National
Lawyer Convention week, so we're notat our usual location for these podcasts,
but otherwise everything will be I thinkthe same as usual. So, Jonathan,
if you're widely regarded, certainly byme as one of the most creative

(00:22):
legal thinkers and impactful lawyers in thecountry. Among your many achievements, I
think the one that really puts youon the map certainly got you in the
New York Times. Failing New YorkTimes, AH was drafting Spaight, the
Texas law providing a private right ofaction for a minimum of ten thousand dollars
against anyone who aids or a betsan abortion after five weeks, which effectively,
as design disables the federal courts fromenjoining it, even though at that

(00:45):
time roversus Wade was still good law. And I want to talk to you
about that and a lot of otherthings. But first I thought we could
just do a little bit about yourbackground and how we got to where you
are today. So I think themost sort of fundamental question for you and
most people listening is what made youwant to be a lawyer? Why'd you
go to law school? It wasinterested in law. It came around later,

(01:06):
uh, very late in the dayduring my undergraduate education, where I
just thought going to law school wouldbe a more uh interesting career path.
In going to graduate school and tryingto get a PhD. There was more
opportunity to law. Seemed very broad, lot of so many different areas of
academic interests that you can pursue,I in the law, whereas I think
going to graduate school would have beenmore narrow once you kind of lock yourself

(01:30):
into a particular field of study.So uh. But again, when I
started law school, I wasn't necessarilyexpecting any of these particular things to happen.
But I my interest, and Ithink some of it was piqued by
just reading interesting things in the legalrealm, you know, both Supreme Court
opinions and also some of the academicwriting of law professors that again I had
gotten a very cursory view of asa student in in college. But those

(01:56):
were things that really piqued my interestin studying law further awesome, How did
you end up choosing Chicago for lawschool? You went to the University of
Chicago for Yeah, you don't know, grade school? I went there too.
How did you pick that? So? I started law school in nineteen
ninety eight, and at the timeI visited University of Chicago twice as a
prospective student, and it was justso impressive to see the classroom environment and

(02:19):
the faculty at the time. Thethe faculty roster was amazing. You had
people who were just Hall of famecaliber law professors and scholars, and I
just had a better feeling there thanany other schools that I was considering in
terms of just where I think Iwould learn and develop and be able to
grow as as a lawyer and asa thinker. W Uh When you were
at the school, who were thefaculty members that were the most sort of

(02:42):
influential for you as a young student. There were so many of them,
I think, certainly in terms ofthe classroom instruction. Almost every professor I
had had uh a big impact justin terms of showing me how to think
and and how to teach and howto approach issues with with integrity and with
rigor. And on the scholarship side, as a student, you're not reading

(03:06):
as much of your professor's work becausethe class assignments are mostly focused on case
law and the case method. Butto the extent I was able to read
some of the work produced by myinstructors. All that had an impact.
Professor Epstein I knew uh a bitfrom even before I started from law school.
But others, uh, both onthe right end the left bring Professor
Sunstein, Professor Strauss, Judge Posner. Uh. So many of them had

(03:29):
thrown down really serious challenges to someof the ways I had thought about law
as a as an early law student, And a lot of the questions that
they've posed have been challenges that I'vebeen trying to think about an answer over
the last twenty or so years thatI've been a lawyer. So was Judge
Posner teaching pretty actively then when Iwas there, he was kind of not
around much. He would teach aclass a year I took s Yeah,

(03:52):
I took one class from him.It was called Law and Economics of health
Care Systems, which he co taughtwith Tom Phillipson at the Public Policy School.
So uh, but he was sucha prolific writer, and and was
just writing a book a year atthe time, maybe probably more than that.
I mean he would he would writefaster than I could read them.
And Professor Sunstein was the same way. They just constantly cranking out new books.
And those books were being talked aboutof the law school, even among

(04:14):
those students and among the faculty inclass. That's awesome. Yeah, So
what did you do after after lawschool? After law school? I clerked
for two years. I started offclerking on the fourth Circuit for Judge Lootig,
and after clerking there, I clerkedfor Justice Scalia for a year.
So I finished my clerkships in summerof two thousand three. So graduated in
the two thousand and one. Whatwere those like? What was like?

(04:36):
L clerking for Judge of Leading.It was a really interesting experience. He
he gave us a lot of latitude, but also a lot of training.
He was very much trying to teachus how to write and how to draft,
not just with the bench memos,but with the opinion writing itself,
and just how to rigorously approach caseswhen you were a law student. Just

(05:00):
reading the opinions in the case bookafter they come out. When you're clerking,
you have more involvement in the productionof judicial opinions and preparing for oral
argument and thinking about hard questions toask the lawyers and thinking about how to
write the opinion before it's written.So it was just different because law school
you sort of take the final productthat you get from the courts as it

(05:21):
is, and then with clerking there'sjust a lot more thought that goes into
how to produce good product, goodjudicial work product. And that was kind
of the heyday of the conservative PourCircuit, right, I mean, back
back in those days, the PourCircuit was one of the great conservative circuits
in the country, right or doI ha? Yeah, uh it was
back then. Yeah. It thingschanged pretty quickly after I finished clerking.

(05:44):
But at the time there was amajority of Republican appointed judges and almost all
of them had textualist or originalist instinctswhen it came to either statutory construction or
constitutional law. And lest a beenfascinating. Yeah, at the time it
was. And then what was itlike clerking for the grade man? Just
we had an interesting term. Imean I started there in the fall of
two thousand two, so it wasOctober term two thousand two. That was

(06:06):
the term that certain cases were decided, such as Guttering Grats on affirmative action
and Lawrence against Texas, which overallbottles against Hardwick created a substantivity process right
to homosexual conduct, and some othercases Garamendi, which didn't get as much
media attention, but it was animportant case on foreign relations, power,

(06:29):
and some others. The term,I think started well for the Scalia chambers
in terms of being in the majorityquite a bit. It ended very poorly.
We wound up in dissent quite abit. So I it was kind
of an up and down term,and the justices mood fluctuated with how the
term was going. He really likedwinning, right, I think he hated
losing more more than he liked winning. But he cared about this stuff and

(06:54):
it showed just in his daily demeanor. No, I'm sure so. I've
I've read somewhere that you've been quotedsaying that you didn't have as much faith
in the Supreme Court after the clerkshipas before the clerkship because the decision making
was more politicized and resultory in itthan you had expected. I was just
wondering if you could elaborate some onthat. Yeah, I can't disclose court
confidences, so I can't go intotoo much detail. But it's a nine

(07:15):
member institution, I think, andpart of the difficulty when you have nine
different individuals deciding cases of constitutional magnitudes, they all think differently. So it
it's hard for the Court as aninstitution to develop a consistent or coherent set
of jurisprudence, even when it's purportingto follow precedent and stereotocisis and claims to

(07:36):
value those things stability, consistency,it's it's it's hard for that to happen
even when all the judges are actingin good faith and trying their best.
Yeah, I mean, do youthink that judges should, uh or the
justices really should be blind to thepolitical ramifications of their decisions? So like,
for example, Justice Scalia was obviouslya great scholar and a great originalist,

(07:56):
but he was also an extraordinarily effectivepolitical operative before he was on the
court, and I would stay evenas a public spokesman for originalism and all
that. Do you think he didor should have been ignoring all the sort
of practical consequences of the things,uh, you know, he was deciding
at the court. I don't thinkhe did ignore the practical or political consequences
he he himself described himself as afaint hearted originalist and that Larva article he

(08:20):
wrote on originalism being the lesser evil, and he even admitted he wouldn't take
originalism to its logical conclusion in partbecause it could produce results that are normatively
horrifying MM to most people. Souh again, I think everyone's an originalist
to a certain extent. You know, even even Justice Brendan Marshall would make
originalist arguments on occasion, but noone I think even Justice Scalaire or Judge

(08:43):
Borg is of a full throated originalistin the sense that they would always follow
the original meaning no matter what,without any regard to steritcisis, or without
any regard to consequences. It seemsto be really at an issue of degree.
You know, how much of anoriginalist are you? Yeah, and
we should well about who should talkabout originalism in some debt. But I
do think it's helpful for people tolearn more about kind of your your path.

(09:05):
So after that, you went toolc uh at the height of the
War on terror. Uh? Right? Two thousand three. I yes,
yeah, So what was what wasthat? Like, I mean, who
was the assistant Attorney General at thetime, and and kind of what you
know, what was that experience?Like? Yeah, So the Assistant Attorney
General was Jack Goldsmith. Yeah,and he started I think he was confirmed
right before I started as an AssistantAttorney General and the Office of Legal Council.

(09:26):
Oh, I'm sorry, the titleis Attorney Advisor in in the Office
of Legal Council. So he wasmy former professor at University of Chicago.
He taught me civil procedure and Itook two other classes from him as well.
So it was great to work forhim. And we were dealing with
all sorts of naughty questions about howyou apply the Geneva Conventions and international humanitarian

(09:50):
A lot of this new contacts thewar on terror, where you're fighting an
enemy that hasn't signed the Geneva Conventionsand doesn't abide by those principles. And
then how do you apply a treethat was written for wars between nation states
in in this new context where it'sa war not between another country or another
signatory to the convention, but againstthis amorphous terrorist entity. And then we

(10:11):
also had to deal with questions aboutthe war in Iraq, which had started
shortly before I joined the Office ofLegal Council, so lots of international law
questions that came up. Jack wasthe perfect person to lead the office at
that time. Had you thought muchabout those issues before you got there or
did you have to kind of learnon the job like clerking. Yeah,
I I never thought about the substanceof legal issues before, although I h

(10:31):
I had thought about broader issues ofinterpretation, textualism and things like that,
and how do you apply the textof a treaty in this situation to a
context of the treaty wasn't really writtento address or no one really thought about
how it would apply in this situation. Uh. Similar to what people talk
about with the Constitution, where it'swritten at a certain time and then two
hundred years later, new circumstances arisethat may not have been anticipated at the

(10:54):
time the document was crafted. Sure, absolutely So then okay, so you
went from Molescy, then you wentto academia. Uh. And and then
I'm just curious about what that waslike in and what your path was at
that point. So I started intwo thousand six as a visiting assistant professor
at the University of Chicago. Thatwas a two year appointment where you cause,
right now, in academia, youhave to be published before you get

(11:16):
hired, even as an entry levelprofessor. So if you wanna become an
academic, you need to do somethingbefore going on the market where you can
produce written scholarship. And you needto do that. Really as a full
time job. You you can't writea law of your article. If you're
a working at a law firm,right and billing two thousand or three thousand
hours a year. Maybe you canpull that off. I I couldn't,

(11:37):
but yeah, maybe you could.No, I know, I I couldn't
do it either. I in orderto write scholarship and do it well,
you have to be focusing on itfull time, right, and that's what
you have to be thinking about constantly, and you can't have distractions. Maybe
again, there may be some rarepeople who can pull that off and think
about many different things at once.So that's where I started to first starting
writing published scholarship, and I usedthat to try to get an entry level

(12:01):
position later and uh so again Istarted there at the University of Chicago,
after that, I went to GeorgeMason for about two and a half years
as an assistant professor, and uh, after that, I left academia to
join the Texas s Lister General's Office. Yeah, so I I am actually
this is i'd actually end the interestof this. I'm very curious to hear
about that move because I think,you know, I think you're the only

(12:24):
academic right who's served in that jobsince he was created. So I'm just
wondering how you jumped from academia tosort of the more rough and tumble world
of the Slister General of Texas ata time when they were n the state
was constantly you know, suing theObama administration and doing really interesting, cutting
edge stuff. Yeah, different body. It It came about really through serendipity.
The My predecessor on that job wasJim Hoe, who's now a judge

(12:48):
on the Fifth Circuit. But heknew me from law school. He was
a three L when I was aone L, and his wife, Allison,
was in the class between us,so she was a two O when
I was a one O one M, and when he was a three L.
So Jim called me out of theblue in the summer of two thousand
ten, and mentioned that he wasabout to leave the office and asked me
if I wanted to replace him.That's all. So that's how it came

(13:09):
about. I wasn't really thinking aboutleaving academia at the time, but when
he called and offered the position,it seemed like it would be an interesting
thing to do because I wanted toget more ideas for scholarship, and I
thought that taking a job like thatwould help generate more article ideas. Most
of the article ideas that I've gottenhave come from litigating cases and not from

(13:31):
reading other scholarship. Well, Ishouldn't. Yeah, that's probably not the
right answer to give it a jobinterview if you wanna get an academic job.
But for me, it was thetruth, and I just thought that
I y I even though I reallyenjoyed my time at academia and it was
a great way to develop ideas.You also wanna be able to put your
ideas into action, and it's hardto do that when you're just sitting in

(13:52):
an office, right, wh Whydo you suppose that? I? I
mean, I feel like in thein the sort of glory days of law
schools, the the law Professoria waswriting ring that mattered and things that the
justices would actually read. Yeah,and that would actually become rel relevant or
real life. Right, why doyou suppose it is that? You know,
as you said, that's not theright answer to give an interview.
Yeah, there are there are alot of reasons for that, and I
think you're right to point out thetrend that's been happening. Part of it.

(14:16):
That's I think we have a lotof refugees from PhDs, Yeah,
who wanna get law school appointments becauseit's a much better gig. So you're
seeing people it wi FR certainly paysbetter, teaching load is lighter, it's
much easier to get tenure. Tenuresalmost automatic in law schools. That's not
the case in most academic fields.Typically the presumption is against tenure if you're
in the humanities or the social sciencesor anywhere else. And yeah, it's

(14:41):
just a it's a cushier job thanbeing a professor in a in basically any
other type of academic field. Soyou're starting to see stuff that passes for
legal scholarship that's not really about law, and you're seeing job talks for mentary
level candidates that are chapters from theirpH d dissertation, and they may have
a law degree or they may not. Some of'mondn't even have a low
degrees. But a lot of thearticles that are getting published these days tend

(15:05):
to be less about law and moreabout interdisciplinary work, and some of it's
interesting. I don't wanna say thatit's bad scholarship. It might actually be
great scholarship, but it's not asrelevant to what lawyers do or what courts
do as I think what was beingwritten thirty or forty years ago. Sure,
so what were some of your uhbiggest matters when you were the the
Texas sg uh that you remember?Yeah, there was constant conflict between the

(15:28):
state of Texas and the Obama administry. Fact then it was really just Texas
was the only state then, rightthat had a really fully developed sg's office.
I think, I mean, now, blessedly we have a lot more,
but yeah, it was basically justyou guys. We had a pretty
big office. We had about fifteenline attorneys aws and two deputies and a
and a solicitor general and very goodattorneys, and we were able to attract

(15:50):
some very high quality legal talent inthe office. I think now we have
more states that are trying to emulatethat model, both democratic states and republic
states. But it was helpful becausehe had a really strong team of attorneys
that could write briefs and that greatlyexpanded the number of cases we could bring.
And we had an attorney general atthe time who was very religious and

(16:12):
one I don't think, yeah,I think the current Yeah, the current
attorney general was also very eager toto bring lawsuits against the federal government.
But Greg Abbt in particular wanted to. It wasn't just for political reasons either.
I think he truly believed that thefederal government had gotten beyond its constitutionally
assigned powers and he wanted to pushback on that both. I I think

(16:34):
it benefited him politically for sure,but I think he also truly believed in
it as a lawyer and as aformer state Supreme Court justice, which is
what he was. Oh, Imean no, it it was critical work
that you know, none of theother states were able to pick up that
slack one of the ones I did. Didn't you successfully defend basically the same
law that hold them. It's thatthen became wholewoman'sself from Louisiana in the Fifth

(16:55):
Circuit or No, that's right.Yeah, yeah, that's w we we
won that case in the Fifth starc. We used to surprise that the court,
the Supreme Court got that wrong.No, I wasn't surprised, cause
the court at the time had adifferent membership from what it has today.
Yeah. Nothing the pro abortion judgesdo on the Supreme Court ever surprises me.

(17:15):
Yeah, fair enough. Uh Sothen after that, you went back
to academia, right to Stanford andRB. Yeah. What was it like
going back after having done something morereal and practical for for a while.
Yeah. I had a better agendagoing back on what I wanted to write
about, and I had accumulated alot more ideas from my time in the
sg's office where I c C.Basically had a list of articles I wanted

(17:36):
to write when I got back tothe academy. So I banged out two
of them at Stanford. One ofthem was called textualism in the Fourteenth Amendment
and the other one was the ridof a Racial Fallacy. So I wrote
those while I was at Hoover andat Stanford, and the idea was to
go back into academia in two thousandsixteen or two thousand seventeen, when Trump
won the election, I started toshift my focus more toward possible government positions,

(17:57):
possible judicial appointments, or possible workin private practice. And that's what
you ended up doing, right,you would be back to private practice or
this, yeah, privor practice forthe first time. Eventually I did.
Yeah. I was nominated for aposition at the it r IM. Yes,
you were uh been great, therewould have been I I I did
get voted out of committee, butthe the nomination never got a vote on

(18:19):
the Senate floor. So for thosewho don't know, but uh per uh.
Jonathan was nominated to be the chairmanof AGUS, the Administrative Conference of
the United States, where you couldhave written a lot of and what do
you we could have caused a lotof trouble. Yeah, uh I think
I think the nomination was made ins on September September of two thousand seventeen,
but a year and a half wentby and there was no vote.
I got voted out of committee inMarch. At the time, there was

(18:40):
still the thirty hour rule, Ibelieve, and that's what was bottling up
everything. So terrible. Mitch McConnell, who's the Senate majority leader, needed
to use those thirty hours judiciously forevery nominee and part every judge. They
every judge right, well, judgeright, so and you have to prioritize
the judges over sure. Acus.I mean, Agos was a five year
appointment. The judges are for life, so I don't begrudge him for making

(19:02):
that priority and making those decisions.But I needed to find something to do,
so I eventually got tired of waiting, so I opened my own law
firm in twenty eighteen. So yeah, let's let's talk about that. But
I thought verse would be helpful foreveryone to kind of talk about your legal
philosophy and just kind of how youthink about law. So, just to
start at the sort of broadest level, how would you describe your legal philosophy
textualist and legalistic and formalistic as opposedto consequentialist. Okay, and what were

(19:27):
sort of you you'd mentioned even incollege you were reading sort of the canonical
works, what are the main youknow what what first kind of grabbed your
imagination. It made you think,aha, this is you know, this
is the right way to do law. I's hard to think of a particular
moment where it grabbed me. Ithink in law school many of my law
professors were overtly consequentialists in their philosophy, both on the right end the left.

(19:51):
It wasn't just left of center professors. That was the whole point.
Yeah, for him, right,it's all about that, right. Jude
Poster was a great example of evenProfessor Epstein has justified his own classical liberal
framework through the lens of utilitarianism,and certainly Professor Sunstein has been consequentialist in
the way he's argued for theories ofinterpretation. And from what's been difficult for

(20:14):
me to accept is consequentialism. I'mnot saying that it's wrong, but it's,
at least from my standpoint, it'snot a very satisfying way to write
judicial opinions or to justify judicial decisionsbecause people can't agree on what consos is
a good consequence. That's the wholereason they're in court in the first place,
you know. So for the judgeto try to justify a decision by

(20:34):
an appeal to consequences, I don'tthink has as much power in attempting to
persuade a person to accept the decision, who may not like the outcome as
arguing from the words of a documentthat all of us agree constitutes fundamental law,
when isn't it sort of inherently arbitraryfor the same reason when the judge
is just deciding on what the rightoutcome is it or view, there's some

(20:57):
of that. I mean, theystill have to justice fin their decision.
But another difficult question for consequentialists iswhen should we be rule consequentialists and when
should we be act consequentialists. Right, So, a rule consequentialism tries to
focus on the systemic consequences that adhereto or that inhere in following texts of

(21:18):
legal enactments. So you could actuallymake a consequentialist argument for textualism, I
suppose, But why should we bea ru why should we approach it from
a rual consequentialist framework rather than anact consequentialist standpoint, and just look at
what is the best outcome in thisparticular case. And to me, there's
just no obviously right answer. There'sno obvious right answer to that question about
when we should pursue rule consequentialism atthe expense of act consequentialism, and and

(21:42):
do you do you think the tosome extent the arguments for originalism and textualism
are themself hells rule consequentialist arguments thatthis is just the fairest and most neutral
way to do it. Well,some people try to justify it that way.
But I but again, I Idon't think that's the most persuasive justification
for textualism or originalism, because it'sit's not as all. It's not at
all clear to me that originalism producesthe best normatively desirable consequences. In fact

(22:07):
that I think there's a very goodargument it doesn't if you try to look
at some of the hard cases thatpeople always want to throw out us Browning
ons Board of Education, right,which is hard to justify on originalist grounds,
loving against Virginia. Same thing.There are so many non originalist rulings
of the Supreme Court that have undoubtedlyproduced normatively desirable results that it seems to
be hard to justify originalism by sayingthis is the theory that produces good consequences

(22:30):
across the board. Yeah, solet's talk about some of the critiques of
originalism. So, you know,for first, what do you say to
the people who who sort of arguethat it's impossible to know what the original
meaning of the Constitution is when itwas written, you know, two hundred
years ago, and we're dealing withmodern problems, uh, in a modern
society. There's a there's a famousquote from Justice Ledo that I always think

(22:51):
about for this, in a caseabout California's prohibition on kids buying violent video
games, where he says it argumentand Justice Alito is very funny. Ah,
he goes, you know, youknow what jess Scalia wants to know
is what James Madison thought about violentvideo games and if he enjoyed them.
Do you think that's a fair criticismof originalism or or what do you what
sort of your reaction to that?And I don't know how words in Justice
Leado's mouth, but in the idea, this is just so indeterminate that all

(23:15):
we're doing is making stuff up justlike they are. That's certainly true.
There are there are going to besituations where there just is no original understanding
because nobody thought about this particular problem. Nobody could anticipate this particular problem,
and no one had any idea howthe text should apply to this problem if
it were to arise, So thatthat's certainly a fair criticism of originalism,

(23:37):
and there needs to be a theoryfor what courts should do in those situations.
I don't think the right answer,though, is to say that just
because we can't determine the original meaningof a provision as it applies to a
particular situation, that should therefore liberatecourts or judges to interpret it however they
want. Right, So that critiqueof originalism, to me, does not
in any way justify judicial events oror a living constitution mindset. But it

(24:02):
is a challenge that originalists need toanswer. What do you do in those
types of situations? What do youthink? Well, you can't appeal to
the original meaning if there is none, right you c you can't make an
originalist argument without evidence or reason tobelieve that there was uh a settled understanding
about the text as it applies inthis particular context. Yeah, I mean,
that's just that's one of the problemswith originalism. So if you were

(24:23):
on the court, would you say, the Constitution just doesn't speak to this,
and therefore the democratic process, youknow, the subject to num rated
powers and all that gets to decideor how would you Yeah, I mean
you're gonna have to ask me whatit would be in this specific question.
But yeah, as a general matter, if there's no settled original meaning to
appeal to, if there's no textthat can trump the democratically enacted legislation in

(24:45):
the Constitution, it's very hard tojustify how the courts could then override a
statute that has been enacted by Congressor by one of the states. You
need to justify why the court cancome in and say, no, you
can't enforce this law even though it'sa law. And what are you going
to appeal to? You have toappeal to some higher source of authority.
Is it the text of the Constitution? Is it the original understanding of that

(25:07):
text? What is it? Ifyou have nothing other than what the judge
wants to do. I don't thinkthat's enough, right, It's just not
enough to say we think this law'sonjust so we're not gonna allow as state
official to enforce it. M Y, you need something more than just the
mere belief from a judge that thisis bad policy. Yeah, that makes
sense. So what about the notion, which is another argument folks make that
originalism itself is not even really originalists. So for example, you know,

(25:30):
do we have any originalist evidence thatthe framers themselves or their contemporaries understood the
law this way that they thought itwould have sort of a fixed meaning.
I think, as jes As Scaliafamously said, I don't wanna living constitution,
I want one that is dead deaddead? Is there are you?
I mean, is that a reasonableaccount of what folks thought was happening at
the time. Well, if welook at the text, I mean,

(25:52):
they could have locked in the originalmeaning in certain situations if they wanted to.
Al Right, So let's take alook at the right of jury trial.
There was a decision from j Justto score such a few years ago
Bramos against Louisiana, where he makesan originalist appeal to the meaning of jury
trial and says that it has tobe unanimous because at the time this provision

(26:14):
was enacted, we had uh anunderstanding the jury verdics had to be unanimous,
right, But they didn't lock thatinto the text. They could have
done that, right, They couldhave said you have a right to a
jury trial of UH twelve good menand true, which was the subtled understanding
at the time, but they didn'tuse those words. They just said right
to trial by jury. So thatleaves room for a jury to include women

(26:34):
in the future, even though includingwomen on jury's was assuredly not part of
the original understanding of the word jury. Right, But if the framers wanted
to lock in the original meaning ofthe word jury, they could have done
that through the text that they chose. They didn't say a jury of twelve
men. They said a jury.So so that might be a place where
originalism runs out and you should divertthe state officials rather than sort of add

(26:56):
this gloss beyond what the text isbased on your sort of what was going
on at the time. Yeah,I think the question is what does the
text lock in? Right, Andjust choosing the word jury rather than the
jury of twelve men would seem toindicate they didn't intend to lock in the
understanding of jury that existed at thattime, because they could have used the
words that incorporated all those features ofthe jury as it existed in seventeen ninety

(27:17):
one, they chose not to doso. They also didn't incorporate the requirement
of unanimous jory correct right, sookay, so that makes sense. So
what do you do with things wheremaybe there are strong originalist arguments against them
that are nonetheless bedrocks of current jurisprudence. And this is one that I'm surely
have thoughts on. What about judicialreview itself? I mean, I'm not

(27:37):
aware Marborie is certainly not an originalistopinion, and it's rafting, and I'm
not aware of a lot of originalistscholarship that anyone thought the Court was going
to be deciding which acts of Congressdon't get to take effect. So what
are you doing now? Don't saydon't takef fect. That's the rivers fallacy,
right, that are trumped by thehigher law of the concept right.
I mean that does the Supreme Courtget to essential choose its own interpretation of

(28:03):
the Constitution when Congress has chosen adifferent one. That's that's the difficult question
to answer. And you know,in terms of the textual arguments Marshall made
in Marbury, the textual arguments arequite feeble. You know, There's there's
not a convincing textual argument that Ican see in the text of Article three
or anywhere else in the supremacy clausethat implies that the Supreme Court gets to

(28:26):
override Congress's decisions when it comes towhat the constitution means. Now that said,
Marbury's been around for over two hundredyears, and you wouldn't get confirmed
to the Supreme Court if you deniedthe correctness of Marbury. Which is interesting
because you would think Congress would preferto grandize powers for itself, but decisions
at all. Yeah, it's It'ssomewhat contrary to James Madison's belief that ambition

(28:51):
would counteract ambition and every the individualswho populate our institutions would want to aggrandize
the power of that institution. That'sactually not the case. It's Congress seen
to want the Court to have thepower of judicial view, and they wouldn't
confirm a person of the Supreme Courtwho denied it. That would be seen
as uh, too radical or outsidethe mainstream. So it's possible, I
think, to read the Constitution toallow for judicial review. I don't wanna

(29:14):
say that the the textual cases isfrivolous w when I say judicial review of
talking about judiciar view of Congressional statutes. But I think most scholars would agree
that as a textual matter, congressionalsupremacy is the easier view to defend than
judicial review under Marbury? What aboutpresidential action where the courts are reviewings?
The president says, you know,in my judgment, the statutes and the

(29:34):
Constitution allow me to do X,Y and Z, And this is sort
of a I. You know,I served in the Civil Division in the
Trumpet constraction, so I defended casesabout this topic, you know, once
a week. Ya, what areyour thoughts on? So the question is
can the president just say, eventhough this is a yeah, statute and
acted by Congress, said, youknow, the Chief Justice has rendered his
opinion, nowlative enforced. Well,it's a little different. You're talking about
the president not enforcing the Supreme Courtruling either one either on alright, So

(29:57):
can the president just say court reviewthe president's actions either pursue the statute or
is refusal to enforce its own degrees. To me, they seem very ether
twined. Yeah. So whether thepresident can use his independent constitutional judgment not
to enforce an Act of Congress thathas passed and he has signed or somebody
maybe his predecessor signed it. Hethinks it's unconstitutional. So that's Again,

(30:18):
there's no clear answer from the Constitutionon whether he can do that or to
what extent you could argue. Ithink plausibly that he is an obligation to
enforce the statutes that Congress has passed, whether he agrees with them or not
on constitutional grounds. Uh, becauseit does say he shall take care that
the laws be faithfully executed. Now, what does the word laws mean?
Yeah, obviously laws includes the constitutionright, but whose interpretation of the Constitution

(30:41):
counts. Is it the president's owninterpretation or is it the interpretation that's embodied
in the statute that passed the bycameralism or presentment process. You could construe
the word laws either way. Nota clear answer to this. So the
way this has been settled has beenprimarily through practice. I mean, presidents
have for the most part enforced statutespassed by Congress, even when they think
the unconstitutional. President Obama did thiswith a defensive marriage Act. He had

(31:04):
Eric Holder arguing court that the statutewas unconstitutional, but he's still enforced it
under the take care clause, whichseems interesting. This was raised the door
argument in the United States against windsorwhy are you s coming into Court saying
the statute is unconstitutional, right,but then simultaneously saying we're gonna enforce it
under the take care clause under Articletwo. Well, you can do that.

(31:25):
You can thread the needle if youinterpret the word laws to mean the
Constitution as interpreted by Congress rather thanthe Constitution as interpreted by the President of
the United States. So but buteven if you say the president has an
obligation to enforce the laws Congress andacts w D, isn't there then a
second question about wh why is itthe Supreme Court's job or how does it
have the authority to decide when thathaz or hasn't happened? I mean,

(31:48):
wouldn't a lot of people at theframing MA may have thought that the Congress
is supposed to enforce its own willon the president rather than have you know,
nine unelected justices at the time inthe basement now across the street set
at all for them. You're sayingthat having the justices tell the president to
enforce a statute that he's not enforcing, I mean, they're a difficult art
of court that he's done beyond whatthe statute allows. That was usually what
we were dealing with is the presidentwanted to do something right, and we'd

(32:10):
have people coming into court saying thestatutes still allow it, or you know
whatever. Article two doesn't go thatfar, and then the Supreme Court gets
to decide rather than Congress. Right. Congress can impeach the president. Right,
Congress has other remedies that defund stopconfirming his nominees, launch an investigation.
Congress has plenty of weapons to protectits own prerogatives. So the Supreme
Court is a court of law,So whether it can do these things I

(32:32):
think depends on its jurisdiction. Congresscontrols the jurisdiction of the Supreme Court.
If Congress gives the Supreme Court jurisdictionto decide a case of this type,
I don't think the Court can justdecline jurisdiction because it doesn't want to decide
the case. So ultimately, thepolitical branches will control what the Court's role
will be and resolving these disputes.I don't think there's a clear answer to
any of this in the Constitution.We've been working this out over the last

(32:53):
two hundred years through different branches assertingpowers, and the different branches have tools
that they're disposal to check the otherbranches that they think one of them has
gone too far, And for themost part, they haven't been willing yet
to check the judiciary. They maynight reconsider that stance, right, but
they have ways to bring the judiciaryin the line if they want to.
They can take away it's jurisdiction ifthey can get a statute pass to do

(33:16):
that. They have plenty of otherthings they can do. What do you
think about court packing that was inthe news for a while. Yeah,
in a way. I mean,the Congress can do it. I don't
think there's any question about that.Even people who disagree with the goal of
court packing would acknowledge it's a lawfuland constitutionally based prerogative to Congress. I
just don't think the Court's critics needto go that far. They're if you

(33:37):
have sixty votes in the Senate topass a court packing bill, there are
a whole lot of other things youcan do as well. Uh, before
you get the court packing to counteractwhatever decisions of the Supreme Court you don't
like, we we can talk aboutsome of them. Jurisdiction stripping is the
most obvious one. Just take awaythe courts jurists. If you don't like
the court's second amoundic cases, justsay the court is no jurisdiction to hear
a second amict case. And thatis a that is a practice with the

(33:59):
long tradition in our politics, rightthat certainly, yeah, the days Congress
used to do that with some frequencies. Certainly with respect to the lower courts,
I think everyone would agree Congress cantake away the jurisdiction of a federal
district court to issue an injunction againststate gun control laws if if Congress so
chose to do so. Again,I don't think the votes are there to
do that sort of thing, andI don't think they will be for the
foreseeable future. But with the SupremeCourt, it's a slightly more complicated question

(34:23):
cause they would have to invoke theexceptions clause of Article three. But my
own belief as Congress has plenary controlover the Supreme Court jurisdiction in the same
way it as plenary control over thelower courts jurisdiction. So it maybe a
related question then, is uh aboutstanding? So you know, Justice Schally,
a lot of the conservative justices andthe originalist justices have been very ponctilious

(34:43):
about enforcing the rules of standing underArticle three. And I was just wondering
if you think there's a good originalistargument that there is such a requirement in
the first place that Congress cannot forexample, And I think you you argued
spoke, You didn't you, Ididn't argue it, but I you were
involved in spoki ot I. Iwasn't involved in it either, but I
I was certainly sympathetic to Will Consovoy'sargument. Now, w Will did it?

(35:04):
Okay, yeah, just as goodalmost Yes, uh, but it
so so. I mean, itwould seem to me that Will would have
a very compelling originalist argument that ifCongress wants to create a cause of action
and the award statutory damages for anybodywho establishes its you know, requirements,
where does this idea that you haveto have suffered some harm come from.
He was totally right, and heactually said this a oral argument, and

(35:24):
Justice Kagan, of all people,tried to steer him away from that,
and I think she was trying tohelp him out by telling him, look,
we don't have the votes for that. Yeah, try to make a
different argument if you wanna win thiscase. So where are we right now?
I mean, it's gotten worse.Right now we have TransUnion, which

(35:46):
doubles down on the idea that Congresscan't, by statute, confer s standing
on people, you know, unlessthere's some concrete injury, which the court
says has to be based in.I think commonness is the type of injury
that would give rise to a causeof action of comedy. It's like the
data breef. You can bring thedata bree breach claim for statutory damages if
you have one dollar of injury,but not if you don't. I mean,

(36:07):
it's ridiculous. Yeah, well,why don't we just call them key
tam relators, Cause that's also consThe key tamerlator doesn't need to show any
harm. So if we just callthem key tam relators, and then then
it works. Where does this comefrom? I mean what it's it's it's
mad, It's comes from judicial precedent. It's it's it this is it's it's
I think what David Strauss would callcommon law constitutional interpretation. It's it's root
in the judicial precedent. It's notrooting in text, and it's certainly not

(36:30):
rooting in the original meaning for sure. I mean, look, if k
if key Tam relators can sue they'renot injured, right, No, I
wouldn't think. Okay, So Imean when I read a TransUnion, I
kept writing in the margin, whatabout key Tam? What about key Tam?
And I never saw an answer forthat anywhere in the court's opinion.
Maybe that's next. I don't know. They've already upheld key Taman from an
agency. So yeah, they'd haveto overwep precedent if they wanted to take

(36:51):
that down. So speaking of precedent, I mean, ha, how as
an originalis ist d does one dealwith precedent? I mean, what would
be you know, Justice Mitchell's view, you know, will uh uh on
on how to reconcile the original meetingin the Constitution with story decision. Yeah,
I've written on this. It's ait's a really difficult question for anyone
who's a legalist or a textualist ora formalist like me, because stereidocisis is

(37:13):
almost invariably justified in consequentialist terms.Justiceically I justified stereidecisis a way he called
it. He called it a pragmaticexception to his normal originalist philosophy, And
when I read that, I justI recoil, uh for for a lot
of reasons. Number one, ifyou can have pragmatic exceptions to originalism in

(37:34):
order to uphold a precedent that youdon't wanna overrule, why can't we have
other pragmatic exceptions to originalism if youthink there's a normally desirable consequence. And
then you know. The second concernI've always had with that theory of stereoidocisis
is it almost seems to admit thatconsequences really are the touchstone of proper judicial
decision making, rather than adherence totext or original meaning. So I do

(37:55):
think president has an important role toply. I don't agree with Professor Lawson
and others who have said that youshould just never consider steroid decisis. You
just always interpret the Constitution according towhat you think is right and make the
Constitution the best it can be inall cases. If people said different things
in the past, well they're wrong. You follow the Constitution, you don't
follow precedent. I think that's Ithink that view is not it. Certainly

(38:19):
I don't think that view is textuallycompelled. And let's go back to what
we were saying earlier about Marbar againstMadison, It's not at all clear the
text of the Constitution compels the SupremeCourt to declare an Act of Congress unconstitutional
even when it sincerely believes that theAct of Congress is unconstitutional. So to
me, when the Supreme Court invokessteroid decisis, as it often does in
cases that involve challenges to Congress's legislation, claiming that Congress has succeeded it's numerated

(38:45):
powers, and the Court invokes precedentto uphold a statute that clearly is outside
the original meaning of the Commerce power. They do this all the time.
They've done it since nineteen thirty seven, right. I think the way to
understand what the Court's doing in thatsituation is not that it's ignoring the com
Constitution or allowing an unconstitutional law tobe enforced. But what they're doing instead

(39:06):
is they're shrinking the scope of theMarbury prerogative, which is not constitutionally compelled
in the first place, and bydeferring to Congress as interpretation of the Constitution,
even though the Court thinks it's wrong, they're not in any way engaging
in treason to the Constitution. Bydoing that, they're just acknowledging we don't
necessarily have to be the institution thathas the final word on what the Constitution
means. And here we're going toallow Congress to have that final word.

(39:28):
If you do that, you're stillbeing faithful to the text of the Constitution,
if that makes sense, because thetext of the Constitution does not speak
to the ultimate question of whether Congressor the Supreme Court should have the final
word on what it means. Sothat actually leads me to another question that
I think will build on that.So other people might say originalism as a
surrender and that we're just giving up. I mean, the liberal judges will

(39:50):
do whatever they want whenever they havea majority. They will impose their will
on America, as the War Courtand to a largest at the Burger Court
did on all kinds of issues.And so when we sort of talk what
you were just saying about, Yoio, we're gonna cut back marbery and all
these sort of very high minded,principled things, aren't we just giving up
power that we have today and allowingthe other side to kind of run run
wild. We have a Supreme Courtmajority, why don't we use it well,

(40:14):
used to do what it's's is theidea, use it to just impose
anything you want that's dud ideologically scompatible criticism. That's not my da,
but that would be the yes,I mean, essentially, that would be
the argument. Yeah, I don'tthink that's a very good argument for a
lot of reasons. I mean,if if you think the left has misused
the judicial power, the remedy isto overrule those decisions. The remedy is
not to just make lawless decisions ofyour own in order to balance the books,

(40:37):
right, I mean, judicial officersare bound by an oath to pull
the constitution. So I don't seehow that would be compatible with a person
who believes in textualism saying I'm willingto disregard my interpretive commitments just to get
back at the other side for perceivedabuses that they engaged in fifty years ago.
That it just not only as thatseen petty just sounds totally lawless.

(41:00):
Yes, I agree, all right, yeah, yeah, this is people
are saying, all right, solet's talk about kind of the future of
originalism. So I think run aninteresting time for the kind of the conservative
legal movement and originalism, And atleast from to my mind, it's sort
of impossible to overstate the degree towhich Roe versus Wade shaped the conservative legal

(41:22):
movement. And many of the thingsthat we talked about today grew out of
kind of the reaction to that extraordinaryoverreach of judicial power. You know,
so from Robert Bork and before him, Richard Dixon talking about strict constructionism to
the much more wealthy orized originalism wehave today. You know, now that
Grow is gone, you know,what do you think what's next? I
mean, what's next for the forthe movement and for these ideas. Grow

(41:45):
against Wade was a symbol of theliving constitution mindset. It was a symbol
of judicial arrogance and overreach. Andwell, largely, if you are a
textualist, and if you are anoriginalist, it's it's just I I it's
it epitomizes everything that's wrong with theliving Constitution philosophy. So I don't think
the legacy at Dobbs is going tobe one that reduces abortion or access to

(42:08):
it, if in fact there's empiricaldata showing abortions have actually gone up since
the Dobb's decision. But what thelegacy will be is Dobbs was a at
least the way the opinion was written, a real repudiation to the mindset that
judges can just go off and inventso called substantive due process rights just because
they think it's good policy and thenimpose their ideological beliefs in the nation.

(42:28):
Now, your question is what's nextnow that Rowe has been overruled. There
are plenty of other decisions, eventhough they're not as prominent as Roe,
that reflect that same type of philosophyto judging right. And we saw a
lot of this in It's not justthe Warren Court in the Burger Court.
A lot of this came from theRankquist Court and the Roberts Court. What
do you do about that? Whatdo you do about a case like Obergefele,
which is also a non textual rightthat was imposed through the doctor's substantive

(42:52):
due process. It's not a rightthat's deeply rooted in tradition, so it
doesn't satisfy Dobbs's test for a propersubstanti due process right. Will that be
overruled? When there's more public supportfor same sex marriage now than there is
for abortion, You know, that. That's an interesting question. I if
you're asking me to predict what thecourts will do, or you ask me
what should when you say what's next? Like, yeah, what's what's next?
In terms of what I wanna target? Yeah, Yeah, there's a

(43:14):
lot on my on my list.I mean, I think one of the
things that my cross hairs is alot of the decisions that were made in
the area of criminal law and criminalprocedure, which haven't gotten much attention.
There's been so much focus right nowon abortion and homosexual rights and transgender rights
that some of these criminal law issueshave flown under the radar screen. But
some of those I think are ripefor reconsideration or overruling the exclusionary rule.

(43:35):
Even Justice Kaigan has shown some skepticismabout that, and there's I think there
are five votes right now in theSupreme Court to overrule that if we get
the proper case too them. Imean, what we have to do is
just flood the courts with lawsuits,so some of these cases start trickling up
to the Supreme Court. That's reallythe challenge. And we know the big
law firms aren't going to bring anyof these cases, so Yah it's up
to solo practitioners and boutique firms todo all this and find the clients,

(44:00):
bring the cases, find the vehicles. Rules an interesting one. I mean,
do you think that's had sort ofa negative effect on the scope of
Fourth Amendment protections too, because yeah, the remedy is so awful in the
you know, a murder case orsomething like that, to suppress the evidence
and let the criminal go free.Then it actually has caused these rights to
be con tightened. Yeah. Quitepossibly, that's true. I mean,
there's a lot about the Fourth Amendmentright now that's completely Yeah, just it's

(44:22):
non textable if you actually people needto read the Fourth Amendment and see what's
in there. Right, there isno requirement of a search warrant, even
though this surem Court says there is, and there are the opposite Yeah,
it just says, yeah, yeah, it just as searchers have to be
reasonable, no unreasonable searches and seizures. And there's a limitation on warrants.
A warrant cannot issue without probable cause. And we still have the Supreme Court
saying there's a warrant requirement, althoughsubject to I've encountered the number of exceptions.

(44:45):
They've created the so called foul,but they have a warrant requirement when
they want it that they don't havea warrant requirement, they invoke an exception
when they don't want to have it. There's a lot that needs to be
cleaned up in that area, andthat's less of an ideologically charged issue,
so there may be less pushback fromI think the Left to spend a lot
of their energy now on other issuesbesides this. So this I think is
a very promising area for more movement, and I think we could probably get

(45:08):
five, six, maybe even sevenvotes to cut back on the exclusionary well
when some of these other court inventeddoctrines. Another decision i'd love your thoughts
on is Mallory against Norfolk Southern Railroad. So, for those who don't know
about Mallory, mister Mallory was aformer employee in Norfolk Southern. He lived
in Virginia. He'd worked previously forthe railroad in Pennsylvania. The railroad does

(45:30):
a lot of business in Pennsylvania.The railroad also had consented to jurisdiction in
Pennsylvania under a state law that said, if you want to do business here,
you have to consent. Despite allthat, the Railroad argued that the
Fourteenth Amendments do process clause because weall know we fought the Civil War to
protect companies from being suedent in Pennsylvaniaprohibited them from being subjected to jurisdiction.
And so the coalition is really reallyinteresting and maybe honors a lot more to

(45:52):
come. The majority opinion is byJustice Gorsich, with Thomas Jackson and Sodoma
or just As Lego Alito concurs,and the dissent is uh Justice Barrett,
the Chief Justice, just As Kavanaughand Justice Kagan. What's going on here?
What do you make of all this? Yeah, a very interesting lineup,
as you say, yeah, Iagree with the majority. Uh.
My friend Ashley Keller argued the casefor the plaintiff, and if you read

(46:15):
his brief, it was a verystrongly originalist brief. So you would expect
to see the Court's originalists in themajority, and you did see some of
them. I think the justices youmentioned, yeah, Gorsuch, Thomas and
A Leo Jackson, Well yeah itj Jackson and so Doom joined the majority
probably for other reasons. Yeah,but it was an interesting lineup. And
you saw really the divide I thinkbetween some of the more puists, the

(46:37):
more of the formalists on the court, and some of the more pragmatics,
uh in the conservative wing of theof of the Supreme Court, where Roberts
and Kavanaugh are are going the otherway. So the due process clause you
mentioned, I this is really avariation of substantive due process right there,
people are trying to invoke the dueprocess cost of both substantive limits on state

(46:57):
authority. Sounds a lot like Rowagainst Wade and Obergafo in other cases where
this has been invoked. So I'vealways been skeptical the idea that the due
process clause can constrain the states andtheir exercise of personal jurisdiction. Certainly if
you're making arguments that the constraints gobeyond what was originally understood in eighteen sixty
eight and tag jurisdiction, general jurisdiction, if you consent to jurisdiction all those

(47:20):
things Burnham the case from nineteen ninetynames, yeah, yeah, not a
relative. Yeah. So if ifyou're going to reject the view and think
the courts can impose that through Isuppose a common law method. I don't
think you're doing originalism or textualism.So speaking Upburnham so in that Mallory was
a little odd because you had thisconsent requirement. I mean, and if
you haven't thought about it, justyou can just demure. But do you

(47:43):
think there's a good argument that tagjurisdiction should just apply to companies the same
way it does to you know,human beings like us. Yeah, they
have a per employee in the state, and you you tag the employee.
I haven't given a whole lot ofthought to how that interacts with the practices
of the eighteen sixty eight. Butwhat makes Mallory, at least for me,
are relatively easy case was the practicewas well established at the time the
fourteenth Amendment was enacted. Right,So the people who want to declare that

(48:07):
unconstitution will have a really steep hella climb in showing how a practice that
clearly existed at the time the fortiethMine was ratified and there's nothing in the
text to show this is somehow improper, How does that become unconstitutional? Right?
I mean, do you think thereare other doctrines like so see from
from RISEID it seems like there area lot of sort of what i'll call
pro business doctrines that were kind ofdeveloped in the last hundred years. Yep,

(48:30):
a lot of momentum in the ninetieswith the kind of Kennedy O'Connor Suter
Court that don't really have any basisin the original meaning at the Constitution capsum
punit or damage and stuff like that. Do you see this as like maybe
a next wave of litigation opportunities tosort of make the law more original,
list and more you know, inline with the right way of thinking about
bots. It's hard to say,cause it's it's not clear where the votes

(48:52):
on the Supreme Court come out onthis. You know, you pointed out
not all the Conservatives are on boardwith cutting k you know, trying to
scale back these doctrines. Uh all. I I think what I would like
to see is Congress codify these doctrinesif if these really are good for business,
that's really Congress's job. They havethe commerce power, business interests have
plenty of clout in Congress. Whynot just get a statue? Now,

(49:13):
Business isn't spending resources to codify thesethings because they have for the last fifty
or sixty years dependent on the courtsto do this for them, but with
a decision like Mallory, with thatPoork decision from last term, possibly cutting
back on the dormant commerce clause,maybe this will induce members of Congress and
business interests to try to get codifiedlegislation. To me, it's really the
role of Congress to protect business fromoverreaching states. Whether it's California with its

(49:37):
poork rules or Pennsylvania with its personaljurisdiction rules. Congress can enact legislation to
protect corporate interests in those situations.The courts shouldn't be doing it for them
if Congress isn't stepping up to theplay. Yeah, it does seem that
most of these constitutional provisions were notadopted in a sort of flurry to protect
big business from the legislature. Right, W mean a really populist background as

(49:57):
a country, not a corporate issone. Uh okay, So one more
question and then maybe we to takea break. I think, uh,
what is your most controversial view ifyou have one, and I don't And
I don't mean though, but Idon't mean like to the New York Times,
Harvard, that's gonna get you pigotedor something, Right, I mean
with our friends, like the kindof thing where at the federal of society
people are gonna be hissing and saying, oh, Johnathan, come on.

(50:19):
I don't know if they be hissing. There are a lot of people who
were not happy about the Texas HeartbeatAct, even among conservative circles. You
know, they thought it was somethingthat would threaten other constitutional rights and erode
the judiciary's authority and protecting constitutional rights. I don't think those concerns were valid.

(50:39):
But and it partly because the TexasHeartbeat Act framework will only work in
certain situations. It's not going towork if the Supreme Court clearly supports the
right MM and if the right isclearly defined, because in those situations,
there's no reason to fear a privatecivil enforcement lawsuit. You know, the
court's ultimately half your back right,so you can go ahead and do your
thing. Somebody sues you for it, it'll just be thrown out in five

(51:01):
minutes. So I don't think thosethe idea that the Texas Heartpyedact with threat
and all constitutional rights, I thoughtthat was hyperbolic. And I think we've
seen in the two years two anda half year since it's taken effect that
you really haven't seen anyone attempt toemulate this tactic in other areas, with
the exception of AVENUESOM in California.So, I think, to answer your

(51:22):
question, that's probably the most controversialidea or thought that I've had. That
would be when you're talking about federalsociety audiences. That would probably be the
one that's great. Thank you forlistening to Open Minds, a Freedom of
Thought podcast series interviewing the people whobring courage and independent thought to the challenges

(51:44):
of today. To learn more,visit freedom of Thought dot fedsock dot org.