1 00:00:00,120 --> 00:00:02,199 Speaker 1: Let me tell you about our friends over at Patriot Mobile. 2 00:00:02,240 --> 00:00:05,480 Speaker 1: For ten years, Patriot Mobile has been America's only Christian 3 00:00:05,480 --> 00:00:09,039 Speaker 1: conservative wireless provider. And when I say only trust me, 4 00:00:09,280 --> 00:00:12,119 Speaker 1: they really are the only one. The team at Patriot 5 00:00:12,119 --> 00:00:15,360 Speaker 1: Mobile put this coming together so that you could stop 6 00:00:15,400 --> 00:00:19,120 Speaker 1: giving your money to woke big mobile companies to give 7 00:00:19,280 --> 00:00:24,159 Speaker 1: massive donations to Democrats and massive donations to organizations like 8 00:00:24,280 --> 00:00:30,240 Speaker 1: Planned Parenthood. Patriot Mobile also offers dependable nationwide coverage, giving 9 00:00:30,240 --> 00:00:33,479 Speaker 1: you the ability to access all three major networks. 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That's nine seven 29 00:01:37,400 --> 00:01:41,000 Speaker 1: to two Patriot Patriotmobile dot com slash Verdict. 30 00:01:41,360 --> 00:01:41,720 Speaker 2: Welcome. 31 00:01:41,760 --> 00:01:44,800 Speaker 1: It is Verdict with Center. Ted Cruz, Ben Ferguson with you. 32 00:01:44,959 --> 00:01:47,640 Speaker 1: And one of the things I love about doing this 33 00:01:47,760 --> 00:01:50,240 Speaker 1: podcast Center is the fact that we can hit the 34 00:01:50,280 --> 00:01:54,200 Speaker 1: pause button on the big news, breaking news and legislation 35 00:01:54,440 --> 00:01:57,560 Speaker 1: when we have days like the news that we just 36 00:01:58,120 --> 00:02:02,160 Speaker 1: had happened this week. Sanderdale'con the first woman talk about 37 00:02:02,200 --> 00:02:05,360 Speaker 1: breaking the glass ceiling on the Supreme Court, has passed 38 00:02:05,360 --> 00:02:06,800 Speaker 1: away at the age of ninety three. 39 00:02:06,960 --> 00:02:07,480 Speaker 2: And sent her. 40 00:02:07,520 --> 00:02:10,360 Speaker 1: You knew her, you clerked at the Supreme Court, and 41 00:02:10,400 --> 00:02:12,640 Speaker 1: I think we should take a moment and talk about 42 00:02:12,639 --> 00:02:15,840 Speaker 1: her legacy and what she meant to the history of 43 00:02:15,880 --> 00:02:18,200 Speaker 1: this country, especially as being the first woman on the 44 00:02:18,200 --> 00:02:18,919 Speaker 1: Supreme Court. 45 00:02:19,400 --> 00:02:23,280 Speaker 3: Well, listen, Saturday O'Connor was an extraordinary person. And she's 46 00:02:23,320 --> 00:02:26,240 Speaker 3: an historic person. She's a trailblazer anyway you look at it. 47 00:02:26,919 --> 00:02:29,680 Speaker 3: She was the first woman in our nation's history to 48 00:02:29,680 --> 00:02:31,919 Speaker 3: serve on the Supreme Court. It's worth pausing and thinking 49 00:02:31,960 --> 00:02:34,639 Speaker 3: for a second. We did not have a woman on 50 00:02:34,680 --> 00:02:38,800 Speaker 3: the Supreme Court until nineteen eighty one, until Ronald Reagan 51 00:02:38,880 --> 00:02:42,200 Speaker 3: was president. When he was campaigning for president against Jimmy Carter, 52 00:02:43,080 --> 00:02:46,040 Speaker 3: he promised, if there's a vacancy, he would appoint a woman, 53 00:02:46,800 --> 00:02:50,639 Speaker 3: and he did. Saturday O'Connor's life. She grew up on 54 00:02:50,680 --> 00:02:54,040 Speaker 3: a ranch in Arizona. She was a tough Western woman. 55 00:02:55,520 --> 00:02:58,520 Speaker 3: She had a life in politics. She was in the 56 00:02:58,560 --> 00:03:02,520 Speaker 3: Arizona State Legislature. She was the Senate majority leader in 57 00:03:02,560 --> 00:03:06,799 Speaker 3: the Arizona Legislature. Before that, she was obviously a lawyer. 58 00:03:06,840 --> 00:03:10,240 Speaker 3: She went to Stanford Law School. She was classmates with 59 00:03:10,320 --> 00:03:13,919 Speaker 3: a fellow by the name of William Hubbs Renquist Rehnquist, 60 00:03:14,000 --> 00:03:16,440 Speaker 3: who would later become the sixteenth Chief Justice of the 61 00:03:16,480 --> 00:03:20,160 Speaker 3: United States. And as you know, Rehnquist was my boss. 62 00:03:20,960 --> 00:03:24,760 Speaker 3: Was an extraordinary man that class at Stanford. Rehnquist was 63 00:03:24,840 --> 00:03:28,639 Speaker 3: number one in his class. Sanderdale O'Connor was number three 64 00:03:28,639 --> 00:03:29,320 Speaker 3: in his class. 65 00:03:29,520 --> 00:03:30,160 Speaker 4: In their class. 66 00:03:31,000 --> 00:03:34,160 Speaker 3: Wow, I've always wondered whatever happened to the poor schlub 67 00:03:34,200 --> 00:03:36,880 Speaker 3: who was number two. You've really got to feel like 68 00:03:36,920 --> 00:03:38,760 Speaker 3: a loser to be between the two of them. 69 00:03:39,240 --> 00:03:40,120 Speaker 4: Now. 70 00:03:40,160 --> 00:03:44,080 Speaker 3: Interestingly enough, when they were in law school, William Rehnquist 71 00:03:44,800 --> 00:03:50,000 Speaker 3: and Sanderdale O'Connor dated. No way, not only did they date, 72 00:03:50,960 --> 00:03:55,880 Speaker 3: but Renquist asked her to marry him, and she said. 73 00:03:55,760 --> 00:03:57,640 Speaker 2: No, this isn't a wivestow, this is legit. 74 00:03:57,760 --> 00:04:00,440 Speaker 3: No, No, this is he was my boss. I know he 75 00:04:00,480 --> 00:04:02,520 Speaker 3: was a mentor. I knew him very well. 76 00:04:04,120 --> 00:04:05,960 Speaker 4: Subsequently they both got married. 77 00:04:06,880 --> 00:04:09,160 Speaker 1: And wait, she said, did you ever hear the story 78 00:04:09,200 --> 00:04:10,920 Speaker 1: of the saying and no? And how that went down? 79 00:04:11,320 --> 00:04:12,200 Speaker 4: Just that it happened. 80 00:04:12,640 --> 00:04:15,120 Speaker 3: I will say, Look, there are some things as a 81 00:04:15,200 --> 00:04:18,440 Speaker 3: law clerk you can ask your boss, chief, how did 82 00:04:18,440 --> 00:04:20,520 Speaker 3: the girl you asked you to marry? You say, no, 83 00:04:20,720 --> 00:04:23,239 Speaker 3: that's not one of the questions a law clerk can ask. 84 00:04:23,080 --> 00:04:25,080 Speaker 2: Her, but very good decision, fair points. 85 00:04:25,120 --> 00:04:26,760 Speaker 3: So but he and his wife, and she and her 86 00:04:26,839 --> 00:04:28,640 Speaker 3: husband became lifelong friends. 87 00:04:28,720 --> 00:04:29,360 Speaker 4: That's so cool. 88 00:04:29,839 --> 00:04:34,400 Speaker 3: And so she was Sandra Day and she was dating 89 00:04:34,400 --> 00:04:38,360 Speaker 3: a fellow named John O'Connor, who obviously became her husband. 90 00:04:39,040 --> 00:04:41,840 Speaker 3: She described she wrote an autobiography about growing up in 91 00:04:41,920 --> 00:04:46,240 Speaker 3: the ranch, and she describes how she brought her then 92 00:04:46,320 --> 00:04:50,800 Speaker 3: boyfriend back to the ranch to meet her parents, and 93 00:04:50,839 --> 00:04:54,520 Speaker 3: she said her dad took John out on the ranch. 94 00:04:55,480 --> 00:04:58,640 Speaker 3: She said, it so happened that that was the day 95 00:04:58,760 --> 00:05:00,960 Speaker 3: my dad was cask rading calves. 96 00:05:02,800 --> 00:05:04,720 Speaker 4: And she's a smart dad. Right there, He writes in. 97 00:05:04,680 --> 00:05:06,720 Speaker 3: The book, I wonder if he was trying to send 98 00:05:06,760 --> 00:05:10,520 Speaker 3: a message. And I got to say, as the father 99 00:05:10,640 --> 00:05:17,360 Speaker 3: of daughters, I find something exquisitely beautiful about having a 100 00:05:17,400 --> 00:05:21,359 Speaker 3: conversation about some Look, you're the father of sons, so 101 00:05:21,480 --> 00:05:25,479 Speaker 3: you may not appreciate the beauty of ripping the testicles 102 00:05:25,480 --> 00:05:28,800 Speaker 3: off of a live creature while you're talking about some 103 00:05:28,960 --> 00:05:31,720 Speaker 3: boy that wants to date your daughter. But that's what 104 00:05:31,760 --> 00:05:36,200 Speaker 3: Saturday O'Connor's dad did. So she had a life where 105 00:05:37,000 --> 00:05:40,480 Speaker 3: she was in politics, and then she ended up in 106 00:05:40,600 --> 00:05:44,440 Speaker 3: nineteen eighty one when Reagan is president being appointed to 107 00:05:44,440 --> 00:05:48,960 Speaker 3: the Supreme Court, being the first female Supreme Court justice. 108 00:05:48,960 --> 00:05:50,960 Speaker 4: Now, I got to say, as the dad of. 109 00:05:50,960 --> 00:05:56,599 Speaker 3: Two daughters, that was a really significant threshold. Sure, you know, 110 00:05:56,680 --> 00:05:59,960 Speaker 3: I asked my girls the day Justice O'Connor died. I said, 111 00:06:00,560 --> 00:06:03,040 Speaker 3: do you know who Sanderday O'Connor is, And my fifteen 112 00:06:03,120 --> 00:06:04,640 Speaker 3: year old daughter said, yeah, Dad, I do. 113 00:06:04,680 --> 00:06:05,480 Speaker 4: I'm not going to tell you. 114 00:06:06,000 --> 00:06:07,840 Speaker 3: My thirteen year old said, I have no idea and 115 00:06:07,880 --> 00:06:10,960 Speaker 3: I don't care. Which you can look forward to this 116 00:06:11,000 --> 00:06:14,440 Speaker 3: when you have teenagers. Yes, So I tried to explain 117 00:06:14,520 --> 00:06:16,479 Speaker 3: briefly to them and then they're like, yeah, yeah, whatever debt. 118 00:06:17,520 --> 00:06:20,799 Speaker 3: So Justice O'Connor on the court, she was a trailblazer. 119 00:06:22,000 --> 00:06:28,760 Speaker 3: She and Tony Kennedy, who was Reagan's third appointee, were 120 00:06:28,800 --> 00:06:33,400 Speaker 3: the swing votes for twenty years. So basically the way 121 00:06:33,440 --> 00:06:36,680 Speaker 3: the court played out for a long time is there 122 00:06:36,720 --> 00:06:42,200 Speaker 3: were three reliable conservative justices, William Rehnquist, Antoninscale and Clarence Thomas. 123 00:06:43,279 --> 00:06:47,320 Speaker 3: There were four reliable left wing justices and then in 124 00:06:47,360 --> 00:06:52,480 Speaker 3: the middle, exquisitely in the middle were Sanderdale O'Connor and 125 00:06:52,520 --> 00:06:57,520 Speaker 3: Tony Kennedy. And the basic dynamic was, look, the left 126 00:06:57,560 --> 00:07:00,280 Speaker 3: wing of the court had four votes. They need to 127 00:07:00,279 --> 00:07:02,480 Speaker 3: get one of them, and if they got one of them, 128 00:07:02,520 --> 00:07:05,120 Speaker 3: they won five to four. And so to have a 129 00:07:05,120 --> 00:07:07,240 Speaker 3: conservative victory on the court, you had to hold on 130 00:07:07,240 --> 00:07:08,960 Speaker 3: to O'Connor, and you had to hold on to Kennedy, 131 00:07:09,000 --> 00:07:13,120 Speaker 3: and that was a complicated dynamic. They were each susceptible 132 00:07:13,160 --> 00:07:18,480 Speaker 3: to different issues. So Sanderday O'Connor was someone who believed 133 00:07:18,680 --> 00:07:23,840 Speaker 3: powerfully in balancing. There's a law review article that Antonin 134 00:07:23,920 --> 00:07:27,120 Speaker 3: Scalia wrote called the rule of laws a law of rules, 135 00:07:27,720 --> 00:07:31,200 Speaker 3: And in law there's a basic divide between do you 136 00:07:31,440 --> 00:07:35,640 Speaker 3: have judges laying out bright line rules or do you 137 00:07:35,720 --> 00:07:39,600 Speaker 3: have judges engaging in standards. Now, what are the advantages 138 00:07:39,600 --> 00:07:42,800 Speaker 3: of a bright line rule? A bright line rule is clear, 139 00:07:42,880 --> 00:07:46,600 Speaker 3: it's predictable, and you can anticipate it. You know what 140 00:07:46,640 --> 00:07:49,560 Speaker 3: it is, you know what the line is. Scalia was 141 00:07:49,600 --> 00:07:52,560 Speaker 3: a big advocate of bright line rules. What are the 142 00:07:52,600 --> 00:07:56,440 Speaker 3: disadvantages of bright line rules? Well, there can be instances 143 00:07:56,480 --> 00:07:58,720 Speaker 3: in which it's unfair if you have an absolute cutoff. 144 00:07:58,720 --> 00:08:01,560 Speaker 3: There can be a particular instant in which it's unjust 145 00:08:02,160 --> 00:08:04,120 Speaker 3: for someone to get hammered on the other side of 146 00:08:04,120 --> 00:08:11,680 Speaker 3: a bright line. Sandreday O'Connor loved balancing tests. She loved 147 00:08:11,840 --> 00:08:15,680 Speaker 3: amorphous standards. Now, what is the advantage of an amorphis standard. Well, 148 00:08:16,200 --> 00:08:18,680 Speaker 3: you can respond to fairness, you can make sure that 149 00:08:18,720 --> 00:08:21,440 Speaker 3: If someone's particularly deserving, you take care of them. If 150 00:08:21,440 --> 00:08:27,880 Speaker 3: someone's particularly undeserving, they get their just results. What are 151 00:08:27,880 --> 00:08:30,800 Speaker 3: the disadvantages of standards? No one knows what the hell 152 00:08:30,880 --> 00:08:33,480 Speaker 3: the rule is beforehand. So if someone's trying to order 153 00:08:33,559 --> 00:08:36,560 Speaker 3: their conduct, if someone's trying to say, if you're a 154 00:08:36,600 --> 00:08:39,680 Speaker 3: lawyer in private practice and you're advising a client, can 155 00:08:39,720 --> 00:08:43,160 Speaker 3: you engage in the following conduct? If the judges are 156 00:08:43,160 --> 00:08:47,000 Speaker 3: employing standards like I don't know, depends if the judge 157 00:08:47,040 --> 00:08:49,400 Speaker 3: thinks the conduct is good or bad. It's very hard 158 00:08:49,679 --> 00:08:52,600 Speaker 3: to anticipate what the rules are going to be if 159 00:08:52,600 --> 00:08:56,960 Speaker 3: it's simply the judge's own sense of fairness and equity 160 00:08:56,960 --> 00:09:01,120 Speaker 3: and balancing so on. That divide Connor was really a 161 00:09:01,200 --> 00:09:05,920 Speaker 3: very a counterpoint to Scalia. She believed in standards, Scalia 162 00:09:06,000 --> 00:09:10,200 Speaker 3: believed in rules. The divide was dramatic. But I can 163 00:09:10,240 --> 00:09:12,800 Speaker 3: tell you so, I argued in front of Justice O'Connor 164 00:09:12,880 --> 00:09:14,000 Speaker 3: numerous times. 165 00:09:13,760 --> 00:09:15,040 Speaker 2: How was that, by the way, And how do you 166 00:09:15,080 --> 00:09:15,760 Speaker 2: prepare for that? 167 00:09:15,840 --> 00:09:19,000 Speaker 1: Because I know when you're you're going to up there, 168 00:09:18,880 --> 00:09:21,720 Speaker 1: you're gonna probably i'm assuming, try to make points to 169 00:09:21,840 --> 00:09:24,760 Speaker 1: certain justices that you think would connect with them so 170 00:09:24,800 --> 00:09:27,080 Speaker 1: that they like you, you know some of their tendencies. 171 00:09:27,400 --> 00:09:30,440 Speaker 1: But when you go up against you go in front 172 00:09:30,440 --> 00:09:32,080 Speaker 1: of I say, the Supreme Court, and you're looking at 173 00:09:32,120 --> 00:09:34,840 Speaker 1: Santredy O'Connor, who's literally broke the glass ceiling. 174 00:09:35,320 --> 00:09:37,839 Speaker 2: Was that intimidating as a lawyer the first time you're there? 175 00:09:37,880 --> 00:09:39,880 Speaker 2: I mean, did you knowing how she is? 176 00:09:40,200 --> 00:09:40,280 Speaker 1: So? 177 00:09:40,440 --> 00:09:43,160 Speaker 3: My first oral argument was on October seventh, two thousand 178 00:09:43,200 --> 00:09:43,560 Speaker 3: and three. 179 00:09:44,200 --> 00:09:45,440 Speaker 4: I was thirty two years old. 180 00:09:46,360 --> 00:09:48,440 Speaker 3: It was a case called Freu versus Hawkins. I had 181 00:09:48,480 --> 00:09:51,200 Speaker 3: just been appointed Solicitor General of Texas the beginning of 182 00:09:51,200 --> 00:09:54,920 Speaker 3: that year. And look, I gotta say, number one, how 183 00:09:54,960 --> 00:09:59,160 Speaker 3: do you prepare for it? I had spent literally thousands 184 00:09:59,160 --> 00:10:01,360 Speaker 3: of hours getting rid for that oral argument. I'd spent 185 00:10:01,679 --> 00:10:03,599 Speaker 3: an enormous amount of time on the brief. It was 186 00:10:03,640 --> 00:10:06,360 Speaker 3: a very complicated brief. So I'd written the briefs in 187 00:10:06,400 --> 00:10:10,480 Speaker 3: that case. I did four moot courts. And you asked, 188 00:10:10,600 --> 00:10:14,439 Speaker 3: was it intimidating? I got to admit at thirty two, look, 189 00:10:14,480 --> 00:10:15,800 Speaker 3: I was a pretty cocky kid. 190 00:10:15,840 --> 00:10:17,160 Speaker 4: I know you find that hard to believe. 191 00:10:17,200 --> 00:10:19,600 Speaker 3: It's totally out of character with me now, yes, But 192 00:10:19,720 --> 00:10:24,319 Speaker 3: at thirty two I felt pretty good about my abilities 193 00:10:24,360 --> 00:10:27,880 Speaker 3: to handle this, and so I had a role. Every 194 00:10:27,920 --> 00:10:31,319 Speaker 3: time I did an oral argument, I would supercharge my sleep. 195 00:10:31,320 --> 00:10:32,839 Speaker 4: It's interesting there is. 196 00:10:34,400 --> 00:10:39,560 Speaker 3: Physiological testing that sleep matters enormously for mental acuity, and 197 00:10:39,640 --> 00:10:43,360 Speaker 3: actually sleep the night before matters, but it matters even more. 198 00:10:43,360 --> 00:10:44,320 Speaker 4: Two nights before. 199 00:10:44,960 --> 00:10:46,520 Speaker 3: So when I was in college, I used to teach 200 00:10:46,559 --> 00:10:48,840 Speaker 3: the SAT at Prince Review, which was really fun, and 201 00:10:48,880 --> 00:10:51,240 Speaker 3: we would advise kids, if you're taking the SAT or 202 00:10:51,240 --> 00:10:54,440 Speaker 3: the L side or the MCAT or whatever test, get 203 00:10:54,440 --> 00:10:56,400 Speaker 3: a ton of sleep the night before, get a ton 204 00:10:56,440 --> 00:10:59,839 Speaker 3: of sleep two nights before. So every oral argument, I 205 00:11:00,040 --> 00:11:01,959 Speaker 3: would the night before and two nights before try to 206 00:11:01,960 --> 00:11:05,520 Speaker 3: get nine to ten hours sleep. By the way, in politics, 207 00:11:05,559 --> 00:11:07,320 Speaker 3: before any debate, I try to do that for two 208 00:11:07,440 --> 00:11:09,640 Speaker 3: nights in a row, get nine to ten hours sleep, 209 00:11:09,840 --> 00:11:12,480 Speaker 3: because your brain is a half second faster, and in 210 00:11:12,840 --> 00:11:15,120 Speaker 3: combat a half second matters. 211 00:11:15,840 --> 00:11:16,000 Speaker 4: Well. 212 00:11:16,040 --> 00:11:18,040 Speaker 3: The night before my oral argument, I went to bed 213 00:11:18,080 --> 00:11:19,960 Speaker 3: at like eight thirty at night. I laid down in 214 00:11:20,000 --> 00:11:23,120 Speaker 3: bed and I stared at the ceiling and did not 215 00:11:23,320 --> 00:11:26,360 Speaker 3: sleep a minute. And I'm sitting there like, all right, 216 00:11:26,400 --> 00:11:29,319 Speaker 3: big guy, you feel really confident, but you're scared out 217 00:11:29,320 --> 00:11:31,959 Speaker 3: of your mind. And so my first Supreme Court argument 218 00:11:32,040 --> 00:11:34,719 Speaker 3: ended up being with an all nighter involuntarily because I 219 00:11:34,760 --> 00:11:37,800 Speaker 3: could not fall asleep. Now, my first argument was a 220 00:11:37,840 --> 00:11:40,959 Speaker 3: case Free versus Hawkins. It was at the outer edge 221 00:11:42,120 --> 00:11:45,840 Speaker 3: of federalism. Having done four moot courts, I knew we 222 00:11:45,880 --> 00:11:47,800 Speaker 3: didn't have a prayer. We were not going to win. 223 00:11:47,840 --> 00:11:50,880 Speaker 3: And in fact, my home run that I wanted is 224 00:11:50,920 --> 00:11:53,680 Speaker 3: I wanted to lose eight one, and I wanted to 225 00:11:53,679 --> 00:11:56,880 Speaker 3: lose eight to one. I wanted a Clarence Thomas descent. 226 00:11:57,000 --> 00:12:00,600 Speaker 3: My whole argument was, come on, Justice Thomas, give me thisent. 227 00:12:01,080 --> 00:12:03,280 Speaker 3: Come on, you can do it. And so the argument, 228 00:12:03,720 --> 00:12:05,439 Speaker 3: all right, I'll get a little bit into the weeds. 229 00:12:06,080 --> 00:12:09,640 Speaker 3: The argument concerned a consent decree that a Democrat Attorney 230 00:12:09,640 --> 00:12:13,439 Speaker 3: General of Texas, Dan Morales, had entered into that dramatically 231 00:12:13,480 --> 00:12:16,439 Speaker 3: increased the amount of money that Texas spent on Medicaid. 232 00:12:17,160 --> 00:12:19,600 Speaker 3: Dan Morales was a Democrat. He entered into that consent 233 00:12:19,679 --> 00:12:22,360 Speaker 3: decree because the legislature would never agree to that. Dan 234 00:12:22,440 --> 00:12:25,480 Speaker 3: Morales wanted it, and so it was a complicit consent 235 00:12:25,600 --> 00:12:29,000 Speaker 3: decree between a liberal Democrat and a plaintiff lawyer that 236 00:12:29,040 --> 00:12:31,680 Speaker 3: both agreed lets force the taxpayer to spend a bunch 237 00:12:31,720 --> 00:12:33,880 Speaker 3: of money on things that we want them to spend 238 00:12:34,320 --> 00:12:38,280 Speaker 3: that the elected legislature would never agree to. John Cornyan, 239 00:12:38,360 --> 00:12:41,640 Speaker 3: who was Attorney General of Texas, had challenged that consent 240 00:12:41,679 --> 00:12:44,800 Speaker 3: decree and gotten a court to overturn it. Then Greg 241 00:12:44,800 --> 00:12:48,640 Speaker 3: Abbott became the next Attorney General appointed me as Solicitor General. 242 00:12:49,360 --> 00:12:54,120 Speaker 3: The Fifth Circuit had upheld overturning that consent decree, and 243 00:12:54,160 --> 00:12:57,480 Speaker 3: the Supreme Court granted it took the appeal. Now, the 244 00:12:57,520 --> 00:12:59,640 Speaker 3: problem was, once they took the appeal, there was no 245 00:12:59,720 --> 00:13:02,240 Speaker 3: Sir could split. Generally, the Supreme Court takes cases when 246 00:13:02,559 --> 00:13:03,880 Speaker 3: the courts of appeals disagree. 247 00:13:03,920 --> 00:13:04,600 Speaker 4: There was no split. 248 00:13:05,080 --> 00:13:08,000 Speaker 3: Wow, the only reason to take the case was to reverse. 249 00:13:08,559 --> 00:13:11,160 Speaker 3: And so I got up at the oral argument. It's 250 00:13:11,200 --> 00:13:13,840 Speaker 3: the first case. So the Supreme Court term always begins 251 00:13:13,840 --> 00:13:16,000 Speaker 3: on the first Monday of October. My argument was the 252 00:13:16,040 --> 00:13:18,439 Speaker 3: first case in the first first day of the term. 253 00:13:18,880 --> 00:13:21,120 Speaker 3: And I got up and I'm presenting the argument. And 254 00:13:21,160 --> 00:13:22,960 Speaker 3: by the way, is that good or bad news? By 255 00:13:23,000 --> 00:13:24,320 Speaker 3: the way, because I don't know, I mean, is that 256 00:13:24,360 --> 00:13:26,320 Speaker 3: an It doesn't particularly matter. It was kind of a 257 00:13:26,360 --> 00:13:30,640 Speaker 3: cool coincidence, but it doesn't matter. But what's interesting. So look, 258 00:13:30,679 --> 00:13:33,080 Speaker 3: if you watch TV, you think that a Supreme Court 259 00:13:33,200 --> 00:13:34,520 Speaker 3: argument is giving some. 260 00:13:36,080 --> 00:13:38,840 Speaker 4: Mas ration, Yeah, some speech. 261 00:13:38,559 --> 00:13:42,600 Speaker 3: Where your Clarence Cherrow you're going to speak and sore, 262 00:13:43,080 --> 00:13:47,079 Speaker 3: that is not a Supreme Court argument. You begin with, 263 00:13:47,200 --> 00:13:49,160 Speaker 3: mister Chief Justice, and may it please the Court. Every 264 00:13:49,280 --> 00:13:53,320 Speaker 3: argument begins with with with that opening, and you begin talking, 265 00:13:53,520 --> 00:13:57,160 Speaker 3: and the justices will interrupt you with questions, and they'll 266 00:13:57,160 --> 00:13:59,199 Speaker 3: do it fast, and they'll fire at you. 267 00:13:59,800 --> 00:14:00,960 Speaker 4: And and I've. 268 00:14:00,760 --> 00:14:03,240 Speaker 3: Told what I used to teach at ut law school. 269 00:14:03,240 --> 00:14:06,080 Speaker 3: I would tell my students. I said, look, an oral 270 00:14:06,160 --> 00:14:08,559 Speaker 3: argument in front of the Supreme Court. You're standing in 271 00:14:08,640 --> 00:14:11,040 Speaker 3: front of the nine of the smartest lawyers on the planet, 272 00:14:11,720 --> 00:14:14,720 Speaker 3: and you're a little bit like a chunk of tuna 273 00:14:14,880 --> 00:14:18,320 Speaker 3: being fed to a school of sharks. They come at 274 00:14:18,360 --> 00:14:22,440 Speaker 3: you every direction and every question. You're trying to think of, Okay, 275 00:14:23,400 --> 00:14:25,320 Speaker 3: how do I answer this? And you got to understand 276 00:14:25,360 --> 00:14:30,360 Speaker 3: if you're answering a question a smart justice. So the 277 00:14:30,480 --> 00:14:35,200 Speaker 3: questions are generally not inquisitorial in the sense of, hey, 278 00:14:35,760 --> 00:14:36,840 Speaker 3: what are the facts on this? 279 00:14:36,920 --> 00:14:38,280 Speaker 4: Hey, what's the law on this? What? 280 00:14:38,680 --> 00:14:40,880 Speaker 3: Most arguments you go in and two or three or 281 00:14:40,920 --> 00:14:43,000 Speaker 3: four justices are on one side of the issue and 282 00:14:43,000 --> 00:14:44,800 Speaker 3: two or three or four justices on the other side 283 00:14:44,800 --> 00:14:47,000 Speaker 3: of the issue, and you know that going in yes, 284 00:14:47,120 --> 00:14:48,680 Speaker 3: and they're one or two that are in the middle. 285 00:14:48,680 --> 00:14:50,960 Speaker 3: And what happens is so the justices don't talk to 286 00:14:51,000 --> 00:14:55,640 Speaker 3: each other before an argument. They basically are just tradition. 287 00:14:55,880 --> 00:14:58,520 Speaker 3: It's tradition. It's not a legal thing. They can do it, 288 00:14:59,320 --> 00:15:02,600 Speaker 3: but they base sickly operate like nine separate law firms 289 00:15:02,840 --> 00:15:05,800 Speaker 3: that happen to share the same building. So typically the 290 00:15:06,040 --> 00:15:09,080 Speaker 3: very first time the justices will have discussed the case. 291 00:15:09,520 --> 00:15:11,080 Speaker 2: Is there with you and they're at the. 292 00:15:11,120 --> 00:15:14,560 Speaker 3: Oral argument, and so you will get questions number one 293 00:15:14,640 --> 00:15:17,800 Speaker 3: from the justices who disagree with you. They're trying to 294 00:15:17,840 --> 00:15:20,240 Speaker 3: ask a question and a line of questions to make 295 00:15:20,320 --> 00:15:24,000 Speaker 3: your position look utterly imbecilic. So the reason you need 296 00:15:24,040 --> 00:15:26,640 Speaker 3: that half second speed is you're trying to anticipate if 297 00:15:26,680 --> 00:15:29,960 Speaker 3: I answer yes to question one, where does question two, three, four, 298 00:15:29,960 --> 00:15:32,760 Speaker 3: and five take me? Because they want you to answer 299 00:15:32,840 --> 00:15:37,720 Speaker 3: question five something so ridiculous that the swing justice says, well, no, no, 300 00:15:37,760 --> 00:15:38,480 Speaker 3: I couldn't. 301 00:15:38,160 --> 00:15:39,440 Speaker 4: Possibly agree with that position. 302 00:15:40,040 --> 00:15:42,080 Speaker 3: On the other hand, the justices who agree with you, 303 00:15:43,560 --> 00:15:47,520 Speaker 3: they'll typically they think you're an idiot too, so they'll 304 00:15:47,520 --> 00:15:49,760 Speaker 3: typically jump in, well, counsel, don't you mean to say 305 00:15:49,800 --> 00:15:53,640 Speaker 3: the following, And they're actually trying to argue to their 306 00:15:53,680 --> 00:15:57,720 Speaker 3: colleagues through you, trying to help you. They're trying to 307 00:15:57,760 --> 00:16:01,480 Speaker 3: help you, and so as an advocate, you're responding to this. Now, 308 00:16:02,400 --> 00:16:04,680 Speaker 3: that's in a normal case, and many of the cases, 309 00:16:04,720 --> 00:16:06,320 Speaker 3: I argue, that's what played out. 310 00:16:06,520 --> 00:16:08,800 Speaker 4: That was not frue fru. 311 00:16:08,920 --> 00:16:11,000 Speaker 3: If you go back and read the transcript and I have, 312 00:16:11,960 --> 00:16:14,280 Speaker 3: there are three pages in the middle of the transcript 313 00:16:15,200 --> 00:16:19,800 Speaker 3: where I do not get out two consecutive syllables in 314 00:16:20,040 --> 00:16:22,640 Speaker 3: thirty minutes of argument. I did not have a single 315 00:16:23,280 --> 00:16:26,880 Speaker 3: positive question. I didn't have a single neutral question. There's 316 00:16:26,920 --> 00:16:29,480 Speaker 3: a whole the three pages. There's a section where Scalia 317 00:16:29,600 --> 00:16:35,160 Speaker 3: jumps in with and I go yeah, and then Ginsburg 318 00:16:35,200 --> 00:16:38,120 Speaker 3: jumps in and goes and I go dah, And. 319 00:16:38,040 --> 00:16:41,120 Speaker 4: I have three pages where I go yeah, bah duh. 320 00:16:41,320 --> 00:16:42,800 Speaker 4: That's it. That's all I get. 321 00:16:44,040 --> 00:16:48,320 Speaker 3: And most of the questions came down to the following, Council, 322 00:16:49,360 --> 00:16:52,920 Speaker 3: how the hell can you say that the state didn't 323 00:16:53,160 --> 00:16:58,560 Speaker 3: consent to a consent decree? And you're like, okay, Justice, Yes, 324 00:16:58,640 --> 00:17:01,640 Speaker 3: that's a problem, I agree. But my argument, which I 325 00:17:01,680 --> 00:17:04,600 Speaker 3: still think is right, is how can it be that 326 00:17:04,720 --> 00:17:09,880 Speaker 3: one temporary officeholder in the state can permanently give away 327 00:17:10,080 --> 00:17:14,480 Speaker 3: the authority of the people of the state to elect 328 00:17:14,520 --> 00:17:18,240 Speaker 3: their legislature and make policy decisions. By the way, Dan Morales, 329 00:17:18,520 --> 00:17:21,000 Speaker 3: after he agreed to this consent decree, he was convicted 330 00:17:21,000 --> 00:17:23,160 Speaker 3: of a felony and sent to prison. So the guy 331 00:17:23,200 --> 00:17:27,320 Speaker 3: who did this was in the penitentiary. 332 00:17:26,960 --> 00:17:28,639 Speaker 2: Anyway, that's a good excuse for not being there that 333 00:17:28,760 --> 00:17:29,560 Speaker 2: day in court, though. 334 00:17:29,480 --> 00:17:35,000 Speaker 3: Right it was so oral. Argument proceeded thirty minutes. It 335 00:17:35,200 --> 00:17:40,199 Speaker 3: was brutal. I told you my home run was an 336 00:17:40,240 --> 00:17:42,520 Speaker 3: eight to one loss. With the Clarence Thomas descent. I'm 337 00:17:42,520 --> 00:17:46,000 Speaker 3: sorry to say I failed utterly. I lost nine zero. 338 00:17:47,320 --> 00:17:51,159 Speaker 3: The opinion rejected everything we said across the board. Afterwards, 339 00:17:51,240 --> 00:17:54,320 Speaker 3: I went and saw Chief Justice Ranquist, my own boss, 340 00:17:54,359 --> 00:17:56,200 Speaker 3: that his case was decided, so you could sit down 341 00:17:56,240 --> 00:17:58,320 Speaker 3: and talk with him after it was done. So was 342 00:17:58,359 --> 00:18:00,200 Speaker 3: the afternoon. I had tea with him. One of the 343 00:18:00,200 --> 00:18:01,639 Speaker 3: things he liked to do was have tea in the 344 00:18:01,680 --> 00:18:03,000 Speaker 3: afternoon with his former clerks. 345 00:18:03,600 --> 00:18:05,199 Speaker 1: Did he love, By the way, the fact that you 346 00:18:05,240 --> 00:18:07,480 Speaker 1: were a former clerk that was then arguing in front 347 00:18:07,480 --> 00:18:08,120 Speaker 1: of him. 348 00:18:07,960 --> 00:18:10,679 Speaker 4: And he had had many former clerks like he was. 349 00:18:11,800 --> 00:18:13,040 Speaker 4: He was it's gotta be cool. 350 00:18:13,040 --> 00:18:14,960 Speaker 2: I mean, you're looking out there and it's somebody that 351 00:18:15,040 --> 00:18:16,000 Speaker 2: worked on your staff. 352 00:18:16,359 --> 00:18:18,760 Speaker 3: Yes, But among his former clerks are a guy named 353 00:18:18,800 --> 00:18:20,879 Speaker 3: John G. Roberts, who became the next Chief Justice of 354 00:18:20,880 --> 00:18:23,280 Speaker 3: the United States. So I think it's fair to say 355 00:18:23,359 --> 00:18:26,720 Speaker 3: he was not unused to having former clerks argue in 356 00:18:26,760 --> 00:18:29,480 Speaker 3: front of him. And Renquist says to me, he goes 357 00:18:30,200 --> 00:18:36,600 Speaker 3: a ted. They say, for your first argument, you should 358 00:18:36,640 --> 00:18:41,959 Speaker 3: pick a case you can't lose or can't win. I 359 00:18:42,000 --> 00:18:46,320 Speaker 3: think you chose wisely. That was like a thanks Chief, 360 00:18:46,800 --> 00:18:48,760 Speaker 3: all right. So let's go back to more O'Connor stories. 361 00:18:49,440 --> 00:18:54,960 Speaker 3: So they were classmates. Rehnquist was appointed by Richard Nixon. 362 00:18:55,000 --> 00:18:57,960 Speaker 3: By the way he was appointed, he was the head 363 00:18:57,960 --> 00:19:01,320 Speaker 3: of the Office Legal Counsel under Nixon. Nixon couldn't remember 364 00:19:01,359 --> 00:19:05,800 Speaker 3: his name. If you look at the Nixon White House tapes. 365 00:19:06,680 --> 00:19:08,960 Speaker 3: They were going through choices. They were having a really 366 00:19:09,040 --> 00:19:12,000 Speaker 3: rough time with choices, and Nixon says. 367 00:19:11,840 --> 00:19:12,960 Speaker 4: What about Renchburg? 368 00:19:13,960 --> 00:19:17,360 Speaker 3: And Renchberg became a Associate Justice of the Supreme Court. 369 00:19:17,400 --> 00:19:20,320 Speaker 3: He couldn't get his name right, but he became nominated. Nonetheless, 370 00:19:21,440 --> 00:19:26,720 Speaker 3: So when Reagan was president, he had promised to nominate 371 00:19:26,760 --> 00:19:30,160 Speaker 3: the first woman. In nineteen eighty one, there were very 372 00:19:30,200 --> 00:19:34,919 Speaker 3: few women that had judicial careers. The sort of list 373 00:19:35,119 --> 00:19:38,840 Speaker 3: of potential nominees to choose from was quite limited in 374 00:19:38,920 --> 00:19:42,080 Speaker 3: nineteen eighty one, and especially if you were looking for conservatives, 375 00:19:42,400 --> 00:19:46,600 Speaker 3: it was almost non existent. And so Rehnquist actually suggested 376 00:19:46,640 --> 00:19:51,159 Speaker 3: Saturday O'Connor, his old classmate, his old girlfriend, and Reagan 377 00:19:51,200 --> 00:19:54,720 Speaker 3: took him up on it. Now, the year I clerked 378 00:19:54,720 --> 00:19:57,399 Speaker 3: at the Court was nineteen ninety six to nineteen ninety seven. 379 00:19:57,840 --> 00:20:04,000 Speaker 3: That year was the very, very first case challenging the 380 00:20:04,119 --> 00:20:08,760 Speaker 3: Congress had passed a law governing internet porn, and it 381 00:20:08,880 --> 00:20:12,000 Speaker 3: was the first challenge to a regulation of internet porn. 382 00:20:13,000 --> 00:20:16,359 Speaker 3: And this is nineteen ninety six. The justices didn't know 383 00:20:16,400 --> 00:20:20,000 Speaker 3: what the Internet was. I mean, this was really early on, 384 00:20:20,880 --> 00:20:23,480 Speaker 3: and so the court librarians. 385 00:20:22,920 --> 00:20:24,199 Speaker 1: You know, in my head right now, I'm thinking what 386 00:20:24,240 --> 00:20:26,600 Speaker 1: was the medium age of the Supreme Court back then? 387 00:20:26,680 --> 00:20:30,600 Speaker 3: One thousand and seven. Yeah, like they're really old. So 388 00:20:30,680 --> 00:20:33,919 Speaker 3: the library got mailed, did you have just Joe to 389 00:20:33,920 --> 00:20:39,399 Speaker 3: do that? So the librarians of the Court decide we're 390 00:20:39,440 --> 00:20:42,760 Speaker 3: going to try to do a tutorial to explain the 391 00:20:42,800 --> 00:20:47,160 Speaker 3: Internet to the justices. And it so happened that they 392 00:20:47,280 --> 00:20:51,760 Speaker 3: linked together the Renquist chambers and the O'Connor chambers, and 393 00:20:51,840 --> 00:20:57,120 Speaker 3: so we had a small room. We had William Rehnquist, 394 00:20:57,160 --> 00:20:59,520 Speaker 3: the Chief Justice the United States, We had Saturday O'Connor 395 00:20:59,640 --> 00:21:02,760 Speaker 3: had Honors, four law clerks, we had Renquist, three law clerks. 396 00:21:03,040 --> 00:21:05,679 Speaker 3: We're all in this tidy dark room, and there's a 397 00:21:05,720 --> 00:21:11,080 Speaker 3: Supreme Court librarian who is typing search queries into the 398 00:21:11,080 --> 00:21:14,920 Speaker 3: Internet to explain what it is. And she types in 399 00:21:14,960 --> 00:21:17,560 Speaker 3: the word number one. She turns off all the filters, 400 00:21:17,560 --> 00:21:20,119 Speaker 3: the porn filters that would normally keep it out, and 401 00:21:20,119 --> 00:21:22,160 Speaker 3: then with the filters off, she types in the word 402 00:21:22,240 --> 00:21:28,520 Speaker 3: cantelope misspelled and cantilope misspelled. In nineteen ninety six, with 403 00:21:28,560 --> 00:21:33,560 Speaker 3: no filters on, pulled up graphic hardcore pornography. And so 404 00:21:33,640 --> 00:21:37,560 Speaker 3: I'm sitting standing in a darkened room right behind Sanderday 405 00:21:37,560 --> 00:21:42,600 Speaker 3: O'Connor looking at a computer screen of graphic porn and 406 00:21:42,680 --> 00:21:45,240 Speaker 3: ben to this day, I still remember what Justice O'Connor 407 00:21:45,280 --> 00:21:46,320 Speaker 3: said as she looked at it. 408 00:21:46,400 --> 00:21:51,960 Speaker 4: She goes, oh my, and I have to make all right. 409 00:21:52,040 --> 00:21:53,840 Speaker 4: Number one. It's awkward as all hell. 410 00:21:53,840 --> 00:21:55,600 Speaker 3: I'm like, get me out of here, like I don't 411 00:21:55,680 --> 00:21:58,719 Speaker 3: want to be in this room with a septagenarian watching 412 00:21:58,760 --> 00:22:02,800 Speaker 3: porn right now. But I also couldn't help thinking, like 413 00:22:02,840 --> 00:22:06,840 Speaker 3: I knew the history, I knew that Renquist had dated O'Connor, 414 00:22:06,880 --> 00:22:09,760 Speaker 3: and I couldn't help thinking, how weird is this for 415 00:22:09,880 --> 00:22:15,119 Speaker 3: my boss that he's standing next to his old girlfriend. 416 00:22:14,600 --> 00:22:16,119 Speaker 2: There could have been his wife. 417 00:22:16,160 --> 00:22:20,520 Speaker 3: Fifty years later, and they're watching porn with their employees. 418 00:22:20,080 --> 00:22:24,560 Speaker 4: At the Supreme Court. It was a surreal moment. 419 00:22:25,400 --> 00:22:27,840 Speaker 1: Let me tell you about blackout coffee. Bidenomics is a 420 00:22:27,880 --> 00:22:31,760 Speaker 1: complete until disaster. But I don't let that or any 421 00:22:31,760 --> 00:22:34,119 Speaker 1: of these other issues ruin my day. 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It's Blackout 445 00:23:39,680 --> 00:23:41,320 Speaker 1: Coffee dot com slash verdict. 446 00:23:41,920 --> 00:23:43,320 Speaker 2: Be awake, not woke. 447 00:23:43,520 --> 00:23:45,760 Speaker 1: Blackoutcoffee dot com slash vertict. 448 00:23:47,560 --> 00:23:48,199 Speaker 2: I want to ask you. 449 00:23:48,200 --> 00:23:49,920 Speaker 1: I want to ask you this real quick about Sanderdale 450 00:23:49,920 --> 00:23:54,760 Speaker 1: O'Connor and just the history aspect of this, Sanderdale O'Connor, 451 00:23:55,480 --> 00:23:58,159 Speaker 1: A lot of people don't remember her the way the 452 00:23:58,200 --> 00:24:01,600 Speaker 1: same way that they remember, you know at Gainsburg, for example, 453 00:24:02,280 --> 00:24:06,040 Speaker 1: was her breaking the glass ceiling and her legacy and 454 00:24:06,080 --> 00:24:08,639 Speaker 1: being the first the way that you described it. Do 455 00:24:08,680 --> 00:24:11,399 Speaker 1: you think in America we appreciate what she did and 456 00:24:11,440 --> 00:24:13,560 Speaker 1: how big of a deal that was. Now, because the 457 00:24:13,600 --> 00:24:16,200 Speaker 1: media obviously picked their favorites, it wasn't her. 458 00:24:16,520 --> 00:24:19,280 Speaker 3: Well, because she was a Republican, it was not her. 459 00:24:19,440 --> 00:24:21,840 Speaker 3: And there were issues on which there were some issues 460 00:24:21,880 --> 00:24:25,760 Speaker 3: on which Justice O'Connor was relatively conservative on federalism, she 461 00:24:25,800 --> 00:24:29,240 Speaker 3: could be quite strong. She was a Westerner. She had 462 00:24:29,280 --> 00:24:32,960 Speaker 3: a fondness. So each of the justices had their own 463 00:24:33,040 --> 00:24:36,560 Speaker 3: kind of quirks. They tended to hire clerks that kind 464 00:24:36,600 --> 00:24:42,399 Speaker 3: of reflected sort of their personality. So antonin Scalia would 465 00:24:42,560 --> 00:24:48,760 Speaker 3: hire sharp, hard elbowed, really smart Harvard lawyers. That was 466 00:24:48,880 --> 00:24:53,360 Speaker 3: just you know, that's who Scalia hired. David Suiter tended 467 00:24:53,359 --> 00:25:01,359 Speaker 3: to hire gay, hippie, philosophical, long haired clerk, wearring birkenstocks. 468 00:25:02,720 --> 00:25:03,320 Speaker 4: Renquist. 469 00:25:03,440 --> 00:25:05,400 Speaker 2: My boss, you're saying you wouldn't have gotten that job. 470 00:25:05,560 --> 00:25:09,880 Speaker 4: No, I was not in the running for suitors. I'm 471 00:25:09,920 --> 00:25:10,520 Speaker 4: okay with that. 472 00:25:11,280 --> 00:25:16,240 Speaker 3: Renquist tended to hire kind of all American, like Rhodes Scholar. 473 00:25:16,280 --> 00:25:18,720 Speaker 3: He hired athletes. He didn't like Harvard, he didn't like Yale. 474 00:25:19,400 --> 00:25:23,399 Speaker 3: I was actually a bizarrely a typical Renquist clerk. You 475 00:25:23,400 --> 00:25:25,399 Speaker 3: would have been much more likely to get hired by 476 00:25:25,440 --> 00:25:29,560 Speaker 3: Renquist because he hired athletes. And part of the Renquist 477 00:25:29,560 --> 00:25:32,359 Speaker 3: clerkship is you had to play tennis with him done 478 00:25:32,480 --> 00:25:33,000 Speaker 3: every week. 479 00:25:33,119 --> 00:25:35,000 Speaker 1: That's the closest I would ever gotten to clerking on 480 00:25:35,040 --> 00:25:37,360 Speaker 1: the Supreme Court was that one qualification. 481 00:25:37,040 --> 00:25:40,159 Speaker 3: So and he would so we played tennis Thursday mornings 482 00:25:40,160 --> 00:25:45,840 Speaker 3: eleven am. And actually so you had. So in any 483 00:25:45,880 --> 00:25:48,840 Speaker 3: given year, there were roughly eight thousands petitions for sucharora, 484 00:25:48,840 --> 00:25:50,840 Speaker 3: which is a request for the Supreme Court to take 485 00:25:50,840 --> 00:25:53,960 Speaker 3: it appeal. The court grants about eighty a year, so 486 00:25:53,960 --> 00:25:57,879 Speaker 3: they grant about one percent. The way the Court resolves 487 00:25:57,920 --> 00:25:59,880 Speaker 3: those is they have something called the cirt Pool, which 488 00:25:59,920 --> 00:26:01,959 Speaker 3: is the law clerks that are there. They divvy up 489 00:26:02,000 --> 00:26:04,480 Speaker 3: the cert petitions and you write memos. So in a 490 00:26:04,480 --> 00:26:07,920 Speaker 3: given week, you typically had to write seven to eight memos. 491 00:26:07,920 --> 00:26:10,480 Speaker 3: They could be anywhere from one page to twenty pages 492 00:26:10,560 --> 00:26:13,600 Speaker 3: analyzing the cert petition and making a recommendation to the 493 00:26:13,720 --> 00:26:17,480 Speaker 3: justices whether they should take the case. The pool memos 494 00:26:17,520 --> 00:26:21,560 Speaker 3: were due Thursday at noon. We played Thursday at eleven, 495 00:26:22,000 --> 00:26:24,399 Speaker 3: And you got to understand the clerkship. Like you work 496 00:26:24,480 --> 00:26:26,760 Speaker 3: most days, you work from I worked from about nine 497 00:26:26,800 --> 00:26:29,280 Speaker 3: am to one am every day. I mean, you work 498 00:26:29,320 --> 00:26:33,239 Speaker 3: your tail off many weeks because what starts off. You 499 00:26:33,280 --> 00:26:36,440 Speaker 3: start off in the summer, you're just doing pool memos. 500 00:26:36,480 --> 00:26:39,040 Speaker 3: That takes all your time. Then you get to argued cases. 501 00:26:39,080 --> 00:26:42,000 Speaker 3: You're preparing for argued cases, that takes more time. Then 502 00:26:42,040 --> 00:26:47,280 Speaker 3: the court starts deciding decisions. You're drafting opinions for your 503 00:26:47,440 --> 00:26:50,560 Speaker 3: justice that takes even more time. And then you've got 504 00:26:50,600 --> 00:26:55,480 Speaker 3: emergency appeals things like death penalty cases. So what happens 505 00:26:55,520 --> 00:26:57,800 Speaker 3: is the pool memos you end up compressing in a 506 00:26:57,800 --> 00:27:00,639 Speaker 3: really short period of time. So all full lot of 507 00:27:00,680 --> 00:27:02,760 Speaker 3: Wednesday nights, I would pull an all night or I'd 508 00:27:02,800 --> 00:27:04,320 Speaker 3: be there all night because I start at like ten 509 00:27:04,320 --> 00:27:06,560 Speaker 3: o'clock at night Wednesday. I'd do it all night or 510 00:27:06,560 --> 00:27:08,800 Speaker 3: to finish my pool memos, and then you'd go play 511 00:27:08,800 --> 00:27:10,760 Speaker 3: tennis with the chief and actually O'Connor liked to play 512 00:27:10,800 --> 00:27:15,520 Speaker 3: tennis with him, but the Chief tended to hire I 513 00:27:15,560 --> 00:27:16,240 Speaker 3: went to Harvard. 514 00:27:16,280 --> 00:27:18,760 Speaker 4: I was not an athlete. I was not a tennis player. 515 00:27:18,960 --> 00:27:21,399 Speaker 3: My two co clerks, one of them played JV tennis 516 00:27:21,440 --> 00:27:23,160 Speaker 3: at Yale. The other was captain of his high school 517 00:27:23,160 --> 00:27:26,560 Speaker 3: tennis team. I actually think the Chief screwed up hiring me. 518 00:27:26,600 --> 00:27:29,280 Speaker 3: I think they like picked the wrong pile. They made 519 00:27:29,280 --> 00:27:31,120 Speaker 3: a phone call and they got embarrassed and just didn't 520 00:27:31,160 --> 00:27:36,879 Speaker 3: retract it. But I have a really ignominious distinction. So 521 00:27:37,320 --> 00:27:41,280 Speaker 3: for twenty plus years, the Chief always picked the best 522 00:27:41,320 --> 00:27:43,479 Speaker 3: tennis player to be as partners as we played doubles. 523 00:27:44,320 --> 00:27:46,600 Speaker 3: So my year, the best tennis player was David Hoffman. 524 00:27:46,640 --> 00:27:49,800 Speaker 3: He was the JV tennis player at Yale. First week 525 00:27:49,840 --> 00:27:53,399 Speaker 3: we played David and the Chief versus Rick and me. 526 00:27:54,000 --> 00:27:57,120 Speaker 3: The score was six zero, six zero. The next week 527 00:27:57,160 --> 00:28:00,160 Speaker 3: we played, the score was six zero, six zero. Next 528 00:28:00,160 --> 00:28:02,480 Speaker 3: week we played the score with six zero, six zero. 529 00:28:02,800 --> 00:28:04,959 Speaker 3: After three weeks, the Chief got upset, and I am 530 00:28:05,000 --> 00:28:08,439 Speaker 3: the only Chief clerk in history was so bad. The 531 00:28:08,560 --> 00:28:12,080 Speaker 3: Chief gave me the best player as my partner, and. 532 00:28:12,000 --> 00:28:14,000 Speaker 2: For the rest to meke a competitive I love that. 533 00:28:14,200 --> 00:28:15,440 Speaker 4: And for the rest of the year. 534 00:28:15,480 --> 00:28:18,320 Speaker 3: We ended up actually generally winning, but it'd be like 535 00:28:18,440 --> 00:28:21,760 Speaker 3: sixty four sixty five. It was competitive, and basically David 536 00:28:21,760 --> 00:28:23,560 Speaker 3: would cover three fourths of the court and I'd kind 537 00:28:23,560 --> 00:28:25,600 Speaker 3: of stay in one small spot and try not to 538 00:28:25,600 --> 00:28:27,159 Speaker 3: screw up too many points. 539 00:28:28,000 --> 00:28:30,080 Speaker 4: But that was part of the job. 540 00:28:30,760 --> 00:28:38,320 Speaker 3: O'Connor had once a week an aerobics class that would 541 00:28:38,320 --> 00:28:40,360 Speaker 3: be held in the court. And so in the court 542 00:28:41,680 --> 00:28:45,080 Speaker 3: you have the building of the court above the courtroom, 543 00:28:45,320 --> 00:28:47,560 Speaker 3: the courtroom. The roof of the courtroom has twenty four 544 00:28:47,600 --> 00:28:49,600 Speaker 3: carrot gold gilded in the roof of the courtroom. 545 00:28:49,640 --> 00:28:50,320 Speaker 4: It's really high. 546 00:28:51,080 --> 00:28:54,280 Speaker 3: If you go up higher, the roof on top of 547 00:28:54,320 --> 00:28:58,760 Speaker 3: the courtroom is the floor of a basketball court. And 548 00:28:58,840 --> 00:29:00,800 Speaker 3: so when I clerked at the court, I played hoops 549 00:29:00,840 --> 00:29:03,360 Speaker 3: three times a week Monday, Wednesday, and Friday, same schedule 550 00:29:03,360 --> 00:29:07,600 Speaker 3: as our podcast. Yeah, and we would run full court 551 00:29:07,880 --> 00:29:09,640 Speaker 3: two hours Monday, Wednesday and Friday. 552 00:29:09,640 --> 00:29:11,000 Speaker 4: We actually had some pretty good games. 553 00:29:11,400 --> 00:29:12,640 Speaker 2: You were in the best shape of your life. 554 00:29:12,800 --> 00:29:15,600 Speaker 3: I actually like like six hours a week. If full 555 00:29:15,680 --> 00:29:21,160 Speaker 3: court basketball was you were in good shape. O'Connor would 556 00:29:21,200 --> 00:29:24,960 Speaker 3: have an aerobics class up on the court. And look, 557 00:29:25,000 --> 00:29:27,360 Speaker 3: O'Connor was a pioneer in a lot of the sex 558 00:29:27,480 --> 00:29:33,040 Speaker 3: discrimination cases. You know what's fascinating. Justice O'Connor allowed no 559 00:29:33,200 --> 00:29:36,280 Speaker 3: men in an aerobics class. Only women were allowed, and 560 00:29:36,320 --> 00:29:41,080 Speaker 3: it was an absolute blatant sex discrimination. She's like, you're 561 00:29:41,080 --> 00:29:43,920 Speaker 3: not seeing me in a leotard and you're not welcome. Yeah, 562 00:29:44,200 --> 00:29:45,480 Speaker 3: Now I have to admit I was kind of glad 563 00:29:45,480 --> 00:29:46,920 Speaker 3: because I didn't want to do aerobics and I might 564 00:29:46,960 --> 00:29:49,520 Speaker 3: have felt pressure to do it if like men were invited, 565 00:29:49,560 --> 00:29:52,719 Speaker 3: So I wasn't. So it was very easy, all right. 566 00:29:52,800 --> 00:29:56,960 Speaker 3: One more Sanderday O'Connor story. So I was Solicer General 567 00:29:57,400 --> 00:30:00,000 Speaker 3: five and a half years. We ended up being very fortunate. 568 00:30:00,240 --> 00:30:04,760 Speaker 3: We had some really big constitutional law cases that just 569 00:30:04,840 --> 00:30:07,360 Speaker 3: through serendipity came down the road and we ended up 570 00:30:07,440 --> 00:30:10,960 Speaker 3: litigating and we won most of them. One of the 571 00:30:10,960 --> 00:30:15,440 Speaker 3: biggest cases it was a case called Van Orden versus Perry. Now, 572 00:30:15,520 --> 00:30:19,200 Speaker 3: Van Orden versus Parry was a challenge to the Ten 573 00:30:19,240 --> 00:30:23,440 Speaker 3: Commandments monument outside of the Texas State Capitol. And let 574 00:30:23,440 --> 00:30:25,240 Speaker 3: me set a little bit of context for it, because 575 00:30:25,280 --> 00:30:27,840 Speaker 3: it's relevant to O'Connor, it's relevant to Renquist in the court. 576 00:30:29,000 --> 00:30:32,200 Speaker 3: So this is the mid two thousands, there had been 577 00:30:32,200 --> 00:30:35,280 Speaker 3: litigation all over the country challenging the public display of 578 00:30:35,320 --> 00:30:39,280 Speaker 3: Ten Commandments all over the country. The history of the 579 00:30:39,320 --> 00:30:43,560 Speaker 3: Texas Ten Commandments Monument. It was erected in nineteen sixty one, 580 00:30:44,840 --> 00:30:47,360 Speaker 3: but its history actually goes back to the nineteen fifties. 581 00:30:47,360 --> 00:30:50,960 Speaker 3: The nineteen fifties. There was a Minnesota state judge named E. J. 582 00:30:51,120 --> 00:30:55,840 Speaker 3: Rugemeier who in the nineteen fifties was upset about the 583 00:30:55,880 --> 00:30:58,720 Speaker 3: diminishing morals of the youth in America. By the way, 584 00:30:58,720 --> 00:31:00,800 Speaker 3: pause and thinking the nineteen fifties, he was worried about 585 00:31:00,840 --> 00:31:04,360 Speaker 3: youth morals. Think about today, like Holy Cow, in eighty years, 586 00:31:04,360 --> 00:31:07,520 Speaker 3: it hadn't gotten better. Yeah, And he came up with 587 00:31:07,560 --> 00:31:10,960 Speaker 3: the idea to help the morals of the youth in America, 588 00:31:11,040 --> 00:31:13,920 Speaker 3: let's publicly display the Ten Commandments in public areas across 589 00:31:13,960 --> 00:31:17,840 Speaker 3: the nation. And he went to a public service organization, 590 00:31:17,880 --> 00:31:20,000 Speaker 3: the Fraternal Order of Eagles, sort of like the Rotary 591 00:31:20,040 --> 00:31:22,480 Speaker 3: Club or Kuanas Club. He said, Hey, what do y'all 592 00:31:22,480 --> 00:31:25,360 Speaker 3: think of this idea? And they said, great idea, We're 593 00:31:25,400 --> 00:31:28,040 Speaker 3: all for it all right now, Ben, this is where 594 00:31:28,040 --> 00:31:33,480 Speaker 3: the story takes a weird turn. This is exactly coterminous 595 00:31:34,200 --> 00:31:36,000 Speaker 3: with the release of Cecil B. 596 00:31:36,160 --> 00:31:37,880 Speaker 4: De Mill's movie The Ten Commandments. 597 00:31:38,120 --> 00:31:40,880 Speaker 3: No way, you know, Charlton Heston comes down from Mount 598 00:31:40,960 --> 00:31:43,920 Speaker 3: Sinai carrying the Ten Commandments, and Cecil B. De Mill 599 00:31:44,080 --> 00:31:48,200 Speaker 3: was a larger than life Hollywood character and Mill gets 600 00:31:48,280 --> 00:31:52,040 Speaker 3: wind of this, and he was thinking. 601 00:31:51,800 --> 00:31:52,840 Speaker 4: Like a Hollywood producer. 602 00:31:52,840 --> 00:31:55,160 Speaker 3: He's like, Hey, this is a great idea, but I 603 00:31:55,160 --> 00:31:57,360 Speaker 3: don't want a piece of paper on a frame posted 604 00:31:57,440 --> 00:31:59,840 Speaker 3: on the wall. If you're going to erect this, I 605 00:32:00,160 --> 00:32:06,880 Speaker 3: want big honkin granite Ten Commandments monuments, just like I'm 606 00:32:06,880 --> 00:32:10,040 Speaker 3: gonna have Charlton Heston coming down the mountain with There 607 00:32:10,120 --> 00:32:13,880 Speaker 3: are dozens of what are called Eagles monuments all over 608 00:32:13,920 --> 00:32:17,360 Speaker 3: the country and they're all identical Texas at six foot 609 00:32:17,360 --> 00:32:19,520 Speaker 3: three inches tall three foot six inches wide. 610 00:32:19,560 --> 00:32:20,520 Speaker 4: It is red granite. 611 00:32:20,880 --> 00:32:24,920 Speaker 3: It looks exactly like the tablets that Charlton Heston carried. 612 00:32:26,040 --> 00:32:29,400 Speaker 3: And actually, I'm going to take a brief aside and say, 613 00:32:30,240 --> 00:32:34,080 Speaker 3: if you ever are arguing a case in court, since 614 00:32:34,080 --> 00:32:35,920 Speaker 3: you're not a lawyer, something would have to go terribly 615 00:32:35,920 --> 00:32:38,160 Speaker 3: wrong for you to be arguing a case in court. Yeah, 616 00:32:38,200 --> 00:32:41,640 Speaker 3: but if you're convicted of murder, and you're defending yourself. 617 00:32:43,520 --> 00:32:46,840 Speaker 3: The advice that I have given lawyers is never ever, 618 00:32:46,920 --> 00:32:49,760 Speaker 3: ever try to be funny. It is the province of 619 00:32:49,920 --> 00:32:53,720 Speaker 3: judges to be funny. It is not the province of lawyers. Now, 620 00:32:54,080 --> 00:32:56,120 Speaker 3: that is excellent advice, But I will tell you I 621 00:32:56,120 --> 00:32:58,320 Speaker 3: have twice in my career broken that advice, and I've 622 00:32:58,360 --> 00:33:01,680 Speaker 3: been very lucky. The guy odds of litigation have spared 623 00:33:01,720 --> 00:33:05,560 Speaker 3: me my just desserts both times. When I was arguing 624 00:33:05,600 --> 00:33:08,240 Speaker 3: the defense of the Texas Ten Commandments case in the 625 00:33:08,240 --> 00:33:14,560 Speaker 3: Fifth Circuit Court of Appeals, the process that the Eagles 626 00:33:14,680 --> 00:33:17,400 Speaker 3: used to develop the text of the Ten Commandments, there 627 00:33:17,400 --> 00:33:20,960 Speaker 3: are differences across the dominations, and so what the Eagles 628 00:33:21,000 --> 00:33:24,120 Speaker 3: did is they brought together a committee that consisted of 629 00:33:24,160 --> 00:33:27,880 Speaker 3: a pastor, a priest, and a rabbi. So an oral argument, 630 00:33:27,920 --> 00:33:30,200 Speaker 3: I said, this was drafted by a pastor, a priest, 631 00:33:30,200 --> 00:33:32,400 Speaker 3: and a rabbi. And one of the judges on the 632 00:33:32,440 --> 00:33:35,800 Speaker 3: Fifth Circuit, Judge Prato, leans forward and says, Council, that 633 00:33:35,840 --> 00:33:38,320 Speaker 3: sounds like the beginning of a joke. And I immediately said, yes, 634 00:33:38,360 --> 00:33:43,280 Speaker 3: your honor, But nobody walked into a bar, and miraculously 635 00:33:43,320 --> 00:33:47,480 Speaker 3: the judges took pity on me and laughed. It was stupid, 636 00:33:47,920 --> 00:33:50,880 Speaker 3: but I was grateful for their mercy. Were in front 637 00:33:50,880 --> 00:33:53,840 Speaker 3: of the U. S. Supreme Court on the Texas Ten 638 00:33:53,880 --> 00:33:58,600 Speaker 3: Commandments monument, and at the time there had been dozens 639 00:33:58,680 --> 00:34:02,000 Speaker 3: of cases challenging Ten Commandments monuments. Almost all of the 640 00:34:02,040 --> 00:34:05,160 Speaker 3: monuments had lost the weight of the case. Law was 641 00:34:05,200 --> 00:34:08,839 Speaker 3: headed very significantly against the public display of the Ten 642 00:34:08,880 --> 00:34:13,719 Speaker 3: Commandments as the case was being appealed. So we had 643 00:34:13,760 --> 00:34:16,800 Speaker 3: won in the Fifth Circuit Court of Appeals. The plaine 644 00:34:16,800 --> 00:34:19,160 Speaker 3: iff a guy named Thomas van Orden, who was an atheist. 645 00:34:19,200 --> 00:34:22,640 Speaker 3: He was a homeless man who had walked past the monument, 646 00:34:22,760 --> 00:34:24,759 Speaker 3: was offended by it and filed a lawsuit seeking to 647 00:34:24,800 --> 00:34:28,080 Speaker 3: tear it down. He filed a cert petition asking the 648 00:34:28,120 --> 00:34:30,160 Speaker 3: Supreme Court to take the case. Now, normally, if you've 649 00:34:30,200 --> 00:34:32,399 Speaker 3: won and the other side appeals to the Supreme Court, 650 00:34:32,480 --> 00:34:34,640 Speaker 3: what you do is you fight against it. You say no, no, 651 00:34:34,960 --> 00:34:37,280 Speaker 3: don't take this case. There is no split of authority. 652 00:34:37,280 --> 00:34:39,919 Speaker 3: It's not consequential. You don't need this say no, because 653 00:34:39,920 --> 00:34:41,120 Speaker 3: if they say no, you've won. 654 00:34:41,880 --> 00:34:42,880 Speaker 4: Here was the problem. 655 00:34:43,040 --> 00:34:45,640 Speaker 3: There was an enormous split of authority. I thought the 656 00:34:45,680 --> 00:34:47,640 Speaker 3: Court was going to take one of these cases very 657 00:34:47,719 --> 00:34:51,120 Speaker 3: very soon, and we might have won a pyrrhic victory 658 00:34:51,120 --> 00:34:54,040 Speaker 3: of a short term victory, but if a bad decision 659 00:34:54,080 --> 00:34:55,799 Speaker 3: came down to the Supreme Court, we'd lose in the 660 00:34:55,840 --> 00:34:57,640 Speaker 3: long term and lose our monument. So I went to 661 00:34:57,719 --> 00:35:01,799 Speaker 3: my boss, Greg Abbott, and I said, I think we 662 00:35:01,800 --> 00:35:04,960 Speaker 3: should do something that's called acquiescing insert, which is we 663 00:35:05,000 --> 00:35:08,800 Speaker 3: should agree, yes, Supreme Court, you should take this case. 664 00:35:09,920 --> 00:35:12,759 Speaker 3: And we drafted a brief in opposition where we said, 665 00:35:13,280 --> 00:35:15,400 Speaker 3: there is a split of authority. It is real, it 666 00:35:15,480 --> 00:35:18,880 Speaker 3: is deep, it is wide, it is significant. And what 667 00:35:18,920 --> 00:35:22,120 Speaker 3: we wrote in the brief was, if the Court is 668 00:35:22,640 --> 00:35:28,280 Speaker 3: inclined to resolve this issue, this case presents the single 669 00:35:28,400 --> 00:35:32,560 Speaker 3: best fact pattern to uphold a permissible display of the 670 00:35:32,560 --> 00:35:36,520 Speaker 3: Ten Commandments. It was very risky because if the Court 671 00:35:36,560 --> 00:35:39,879 Speaker 3: took the case and we lost, everyone would pillory both 672 00:35:39,880 --> 00:35:43,040 Speaker 3: Abbot and me. You idiots asked them to take this case, 673 00:35:43,040 --> 00:35:44,160 Speaker 3: and then you got your butt kicked. 674 00:35:44,920 --> 00:35:46,880 Speaker 4: Well, it ended up we were right. They were going 675 00:35:46,920 --> 00:35:47,520 Speaker 4: to take a case. 676 00:35:47,560 --> 00:35:50,439 Speaker 3: They took the Texas case, and they took a case 677 00:35:50,480 --> 00:35:52,760 Speaker 3: out of Kentucky. They took them both and they scheduled 678 00:35:52,760 --> 00:35:57,600 Speaker 3: them for argument on the same day as we're preparing 679 00:35:57,760 --> 00:36:00,960 Speaker 3: the case. Abbot my boss, who was Attorney General. He 680 00:36:00,960 --> 00:36:02,520 Speaker 3: told me when he started, he said, look, I want 681 00:36:02,520 --> 00:36:05,480 Speaker 3: to argue one Supreme Court case while I'm ag and 682 00:36:05,640 --> 00:36:07,279 Speaker 3: let me know which one I should do. And so 683 00:36:07,320 --> 00:36:09,320 Speaker 3: when this case was granted, I said, General, this is 684 00:36:09,320 --> 00:36:09,720 Speaker 3: the one. 685 00:36:09,560 --> 00:36:10,040 Speaker 4: You should do. 686 00:36:10,520 --> 00:36:14,560 Speaker 3: It's a discreet issue of law, it's incredibly important. He 687 00:36:14,760 --> 00:36:17,520 Speaker 3: spent two months preparing. 688 00:36:17,120 --> 00:36:17,680 Speaker 4: For the argument. 689 00:36:17,680 --> 00:36:19,640 Speaker 3: I put together some moot courts. I did moot court 690 00:36:19,680 --> 00:36:24,200 Speaker 3: in DC with a murderer's row of Supreme Court advocates. 691 00:36:24,239 --> 00:36:27,319 Speaker 3: They had collectively over one hundred oral arguments between them, 692 00:36:27,360 --> 00:36:32,760 Speaker 3: and they just beat him senseless. I actually felt really nervous, 693 00:36:32,800 --> 00:36:34,200 Speaker 3: Like when you put your boss in front of a 694 00:36:34,239 --> 00:36:37,360 Speaker 3: moot that like pounds him senseless, You're like, uh, General, 695 00:36:37,600 --> 00:36:39,320 Speaker 3: I hope that was productive. 696 00:36:40,600 --> 00:36:42,000 Speaker 4: Please tell me I'm not unemployed. 697 00:36:42,040 --> 00:36:43,800 Speaker 2: Yeah, yeah, please tell me I'm not gett my walking 698 00:36:43,840 --> 00:36:44,480 Speaker 2: papers a day. 699 00:36:44,520 --> 00:36:46,200 Speaker 3: But look, if you do it right, you want the 700 00:36:46,200 --> 00:36:47,680 Speaker 3: mood to be harder than the actual argument. 701 00:36:47,760 --> 00:36:49,120 Speaker 4: So he went through did several moods. 702 00:36:49,120 --> 00:36:51,319 Speaker 3: He was ready for it, and in the brief I 703 00:36:51,360 --> 00:36:53,200 Speaker 3: told him, I said Okay, General, I've got a plan. 704 00:36:53,960 --> 00:36:58,960 Speaker 3: So for about three decades, Sandred O'Connor was the deciding 705 00:36:59,080 --> 00:37:02,919 Speaker 3: vote on every almost every religious liberty establishment caused case 706 00:37:02,920 --> 00:37:06,840 Speaker 3: in the country. And I read every opinion she'd written 707 00:37:07,320 --> 00:37:10,279 Speaker 3: over and over and over again. And I told my team, 708 00:37:10,280 --> 00:37:13,120 Speaker 3: as we're drafting the brief, I said, I want us 709 00:37:13,200 --> 00:37:19,120 Speaker 3: to swim in Sandradale O'Connor's establishment clause jurisprudence. I want 710 00:37:19,480 --> 00:37:22,759 Speaker 3: I want this to embody everything she's ever thought or 711 00:37:22,880 --> 00:37:25,799 Speaker 3: said about the First Amendment. And in fact, I told 712 00:37:25,800 --> 00:37:28,280 Speaker 3: my lawyers, I said, I want the most frequent words 713 00:37:28,360 --> 00:37:31,520 Speaker 3: in the brief to be O'Connor comma jay. I want 714 00:37:31,560 --> 00:37:35,279 Speaker 3: them to occur more frequently than and or the And 715 00:37:35,320 --> 00:37:38,880 Speaker 3: one of my lawyers said, well, Ted, is it possible 716 00:37:39,000 --> 00:37:42,200 Speaker 3: to be too obsequious to justice O'Connor. 717 00:37:41,800 --> 00:37:42,719 Speaker 4: In this brief? I said no. 718 00:37:44,160 --> 00:37:47,920 Speaker 3: If we can put an oil portrait of Sandradale O'Connor 719 00:37:47,960 --> 00:37:50,279 Speaker 3: in the cover of our brief, we should do so. 720 00:37:51,719 --> 00:37:53,759 Speaker 3: And again I was, you know, probably I was a 721 00:37:53,840 --> 00:37:56,839 Speaker 3: cocky thirty four to thirty five year old. I went 722 00:37:56,880 --> 00:38:00,800 Speaker 3: to Abbott and I said, General, we are we're living 723 00:38:00,880 --> 00:38:05,880 Speaker 3: in her psyche. This brief is exactly what Saturday O'Connor thinks. 724 00:38:06,960 --> 00:38:07,160 Speaker 4: Well. 725 00:38:07,160 --> 00:38:11,640 Speaker 3: With the oral argument, I'm sorry to say we missed horribly. 726 00:38:12,600 --> 00:38:16,520 Speaker 3: She was utterly unpersuaded. She voted to strike down the 727 00:38:16,560 --> 00:38:19,240 Speaker 3: Texas Ten Commandments monument. Now here's where spring Court arguments 728 00:38:19,239 --> 00:38:23,439 Speaker 3: are weird. Every argument we'd aimed at Sanderdale O'Connor missed her, 729 00:38:24,520 --> 00:38:30,520 Speaker 3: but bizarrely enough struck Steve Bryer. Wow, Bill Clinton appointee 730 00:38:30,560 --> 00:38:35,200 Speaker 3: relatively liberal justice, and the two cases I told you 731 00:38:35,239 --> 00:38:40,040 Speaker 3: there was Kentucky in Texas. Four justices voted to strike 732 00:38:40,080 --> 00:38:43,320 Speaker 3: down both monuments. Four justices voted to uphold both monuments. 733 00:38:44,080 --> 00:38:51,839 Speaker 3: Steve Bryer voted to strike down Kentucky and to uphold Texas, which, 734 00:38:51,840 --> 00:38:54,239 Speaker 3: among other things, was a vindication of if we had 735 00:38:54,239 --> 00:38:57,360 Speaker 3: an acquiesced insert, the only opinion would have been Kentucky, 736 00:38:57,360 --> 00:39:00,160 Speaker 3: and it would have been devastating for Ten Commandments monuments 737 00:39:00,239 --> 00:39:02,799 Speaker 3: the country. There was also a really nice kind of 738 00:39:02,800 --> 00:39:07,839 Speaker 3: personal vindication in this so Chief Justice Rehnquist had been 739 00:39:07,840 --> 00:39:12,520 Speaker 3: an original dissenter in a case called Stone versus Graham, 740 00:39:12,880 --> 00:39:15,480 Speaker 3: which struck down the display of the Ten Commandments in 741 00:39:15,520 --> 00:39:16,880 Speaker 3: public schools across the country. 742 00:39:16,920 --> 00:39:17,640 Speaker 4: And he had dissented. 743 00:39:17,840 --> 00:39:19,719 Speaker 3: He said, this is not the first Amendment, this is 744 00:39:19,760 --> 00:39:21,800 Speaker 3: not right. 745 00:39:21,640 --> 00:39:23,080 Speaker 4: Van Orden versus Perry. 746 00:39:23,560 --> 00:39:26,800 Speaker 3: Chief Justice Rehnquist wrote the plurality opinion for the court 747 00:39:28,160 --> 00:39:32,560 Speaker 3: upholding Texas's display of the Ten Commandments. It was the 748 00:39:32,760 --> 00:39:35,480 Speaker 3: very last opinion Chief Justice Rehnquist ever wrote, and he 749 00:39:35,520 --> 00:39:39,760 Speaker 3: passed away later that summer, And so, as his former clerk, 750 00:39:39,840 --> 00:39:43,080 Speaker 3: it was really cool to have been part of a 751 00:39:43,160 --> 00:39:46,600 Speaker 3: case where he was able to vindicate a view he 752 00:39:46,600 --> 00:39:50,640 Speaker 3: had articulated two decades earlier. And sandreday O'Connor, when it 753 00:39:50,680 --> 00:39:53,839 Speaker 3: came to the standards, we didn't meet her standards, but 754 00:39:53,920 --> 00:39:56,640 Speaker 3: miraculously enough Steve Bryer liked what we had to say, 755 00:39:56,680 --> 00:39:58,520 Speaker 3: and so we entered. And by the way, since then, 756 00:39:59,440 --> 00:40:01,719 Speaker 3: the mccreer case out of Kentucky has proven to be 757 00:40:01,719 --> 00:40:05,080 Speaker 3: a very unimportant precedent. It is rarely cited, and the 758 00:40:05,160 --> 00:40:08,560 Speaker 3: vad Ordon case changed the entire direction of case law. 759 00:40:08,880 --> 00:40:12,600 Speaker 3: So the tenth Ten Commandments displays are now routinely. 760 00:40:12,160 --> 00:40:14,359 Speaker 1: Uphilld Well this one. I love doing the show. It's 761 00:40:14,400 --> 00:40:16,960 Speaker 1: so fun to get to talk about this. Since Sandreday O'Connor, 762 00:40:17,280 --> 00:40:19,600 Speaker 1: the first woman on the Supreme Court. Die passed away 763 00:40:19,600 --> 00:40:22,480 Speaker 1: at the age of ninety three. Center always a pleasure. 764 00:40:22,520 --> 00:40:25,200 Speaker 1: Don't forget download this podcast said, make sure that subscribe 765 00:40:25,200 --> 00:40:27,600 Speaker 1: Botto download button as we do this Monday, Wednesday Friday 766 00:40:27,680 --> 00:40:29,520 Speaker 1: a best of what you may have missed during the week. 767 00:40:29,520 --> 00:40:32,160 Speaker 1: On Saturdays, and many of you may not know this, 768 00:40:32,239 --> 00:40:36,640 Speaker 1: the algorithms change this week on Apple. Make sure you 769 00:40:36,760 --> 00:40:39,839 Speaker 1: hit that follow button and check to see because they 770 00:40:39,880 --> 00:40:42,719 Speaker 1: have changed the algorithms where if you haven't downloaded an 771 00:40:42,719 --> 00:40:45,200 Speaker 1: episode in X number of days, apparently it can stop 772 00:40:45,280 --> 00:40:47,680 Speaker 1: doing it for you. 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