Latest / Normal Men / Episode 76 - Mods! Mods!

Transcript

Episode 76 - Mods! Mods! · Normal Men

• 0:00
  George: Ed, how are the leaves?
• 0:02
  Ed: Wet. I just got back from getting poured on.
• 0:07
  Ed: We're not getting that much change yet.
• 0:09
  Ed: It's been too warm.
• 0:10
  George: Oh, really? Because the leaves down here have been changing for a while now.
• 0:13
  Ed: It was, like, 82 days ago.
• 0:17
  George: Wow.
• 0:17
  Ed: So, yeah. Not great.
• 0:19
  George: El Nino, man.
• 0:22
  Lowtax Speedrun Enjoyer: At least you're not in Los Angeles.
• 0:24
  Propter: Yeah, they're clocking. They're clocking 100 degrees in LA right now. Good place for
• 0:31
  Ugarles: wet and gross here in Brooklyn. But I have not left the house. It doesn't matter.
• 0:39
  George: That new voice you hear is Senator Lemon Gogurt, Bluesky's favorite. What? Saints fan, I guess is best way to describe the thing you're favorite of Bluesky.
• 0:49
  Ugarles: Yeah, everyone loves him.
• 0:50
  George: And also legal poster. So we decided to have him on because the Supreme Court's back in session, and we wanted to catch up on some stuff. But before we get to that.
• 0:59
  Lowtax Speedrun Enjoyer: And he's a fan of the only redeemable city in the NFC South.
• 1:05
  Propter: What? Atlanta's fine.
• 1:09
  Lowtax Speedrun Enjoyer: What?
• 1:11
  George: God is fine?
• 1:12
  Ugarles: Cobb County's not fine?
• 1:15
  Lowtax Speedrun Enjoyer: No, Cobb county is not fine.
• 1:17
  George: I'm going to hogtie low tax and drag him around.485 in my F1.
• 1:22
  Ugarles: Yeah. Yeah, you're really not making his case there. Just attach it to the gun, Rac.
• 1:32
  Lowtax Speedrun Enjoyer: Yeah, I definitely don't live in Atlanta's weird little brother city. Let me hog tie you to my F150.
• 1:40
  George: Look, if we're doing insults in North Carolina, there's going to be some reference to a pig involved. So, you know, that's how it goes.
• 1:48
  Ugarles: Some weird vinegary sauce.
• 1:51
  George: Oh, man, I am not in the mood for y' all to trifle over barbecue. I am not going to have a guy sitting in Brooklyn tell me that the most righteous barbecue in the world is weird and vinegary. It is vinegary. That's fair. But the weird bit.
• 2:08
  Lowtax Speedrun Enjoyer: Remember, Brooklyn barbecue is taking over the world.
• 2:11
  Ugarles: That's true.
• 2:11
  Lowtax Speedrun Enjoyer: Remember that story?
• 2:12
  Ugarles: Such small portions don't lie on the Internet.
• 2:16
  George: What year was that story published? That was, like, 2017.
• 2:20
  Ugarles: Every single year.
• 2:23
  George: I mean, the ironic thing is that Charlotte doesn't actually have good barbecue.
• 2:26
  Ugarles: Like.
• 2:27
  George: Like the city of Charlotte. There's a couple places that are all right, but, like, it's not. It's not really that great. You got to go either all the way east, at least up to Lexington to get good barbecue.
• 2:36
  Ugarles: Here's. So can I tell you the truth about New York barbecue? We have very good barbecue, but it costs four times as much as the good barbecue that you have in other Places, and it's made by transplants. Like, it's not some, like, hipster kid. It's someone who hated their parents and wanted to move someplace where they could, you know, but they still are in touch with their barbecue culture. So, yes, we have very good barbecue, but it's not like you can go down to a place and get, get a very good, you know, rack or, you know, pulled what, you know, like any of your, like, good barbecue choices from Texas or Kansas City or Carolina or any. You can, you can get all of it, but it'll cost a million dollars, you know, so, like, there's no barbecue culture. There are just like a couple of places to get good barbecue.
• 3:32
  George: Yeah.
• 3:32
  Ugarles: And so someone who has barbecue once is like, oh, oh, you know, like those videos where you, like, take a couple of kids from Eaton and introduce them to, you know, like, biscuits and gravy and they go, holy.
• 3:52
  Propter: There was that really heartwarming story a couple years back about, about the Orthodox barbecue Jews up in, up in New York City.
• 3:58
  Ugarles: Oh, yeah, I've not seen that, but that's probably fascinating.
• 4:02
  Propter: So. So apparently there was. There was a big fire down at Franklin's Barbecue in Austin that wiped out their kitchen, wiped out all their, all their smokers. And this was a massive opportunity for our orthodox barbecue Jews because all of a sudden you had Franklin's, which is one of the Meccas, so to speak, I guess, of Texas barbecue, was going to spin up new cookers, new smokers that would be. Not have used for anything, pork. So. So you had a once in a lifetime opportunity for these guys to go down, to go down to Franklin's and have brisket from the master and see how it's done.
• 4:41
  Ugarles: That's pretty sweet.
• 4:43
  Propter: So I, I just thought that was a cool little bit of Americano. Also, apparently one of them runs a barbecue catering joint called the Wandering Queue, which I thought was pretty good.
• 4:52
  Ugarles: Yeah, that's good. That is, because there's nothing in the sauce that would be inherently unkosher.
• 4:58
  George: Right.
• 4:59
  Ugarles: And as long as they order it from, you know, that butcher who Trump pardoned despite being obviously guilty and got arrested within, like a year of pardoning him. Hell yeah, you know, let's do it.
• 5:17
  Propter: Yeah. I mean, I think, I think, I think Montreal wound up with the better part of like, of, of, of like Northeastern Judaic smoked meat culture. But, you know, like, that's, that's in there too, right? Like, I mean, pastrami. That's. That's pastrami.
• 5:35
  George: Absolutely goated. That is the Best meat to put on a sandwich. It's. I love pastrami.
• 5:41
  Ed: Pastrami is just an inferior corned beef, George.
• 5:44
  George: No, it's a superior corned beef.
• 5:46
  Ed: No, no, no, no.
• 5:49
  Lowtax Speedrun Enjoyer: George is 100% right on this.
• 5:51
  Ed: Oh, you people.
• 5:53
  Propter: You know, the corned beef as an Irish thing is exclusively like an Irish American thing. That's. Yeah, that's a. That's a post Diaspora deal. Yes.
• 5:59
  Ed: Yes, it is.
• 6:00
  Ed: Because of Jewish delis.
• 6:01
  Propter: Yes, exactly.
• 6:02
  George: Yeah.
• 6:03
  Propter: So everything touches everything.
• 6:05
  Ugarles: Anyway, in. In the fight between pastrami and corned beef, the best decision is to lay down your arms, because there are no bad choices. There are no bad choices. And I. It's kind of a texture thing with both of them. Oh, that's interesting.
• 6:23
  Propter: Yeah.
• 6:24
  Ugarles: Because it can. I think the crust can be a little bit, like, scratchy, you know, like cutting the roof of your mouth on a Dorito. Oily.
• 6:33
  Propter: Like, it's.
• 6:34
  Ed: It's, like, almost slick. I find it too much like eating bologna, which I also don't like.
• 6:40
  George: Bologna is also good. What are we talking about?
• 6:41
  Ugarles: No, you gotta stop getting your pastrami on an airplane. There's no reason it's a dry rub. There's no reason it should ever be slimy or oily. It's the same cut of meat.
• 6:58
  Ed: I understand. And yet I have had pastrami at highly regarded New York places, and just
• 7:05
  Ugarles: how long have they been closed? I don't know. Like, it's just. It just has never worked for me.
• 7:14
  Ed: It's weird.
• 7:16
  George: Oh, boy.
• 7:17
  Ed: Corn beef, on the other hand, just mountain.
• 7:26
  George: This is Normal Men, a podcast from four men who are clinging desperately to normalcy in an era when that's asking a bit too much. I'm George in Charlotte.
• 7:33
  Propter: In D.C. i'm Propter Malone in outer Florida.
• 7:36
  Lowtax Speedrun Enjoyer: I'm Lowtax Speedrun Enjoyer.
• 7:38
  Propter: And I'm Ed in Boston.
• 7:45
  George: All right, so, Charles, do you want. Can I call you Charles?
• 7:48
  Propter: Is that.
• 7:49
  Ugarles: Yeah. Yeah. I. Yes. I put Senator Lemon Gogurt on the thing just as a joke. I don't go by that any place except in the New York bar.
• 7:59
  George: So, Charles, we really do need to talk about the NFC South.
• 8:02
  Ugarles: Sure.
• 8:03
  George: Because, you know, for. For once, my Panthers have a decent quarterback.
• 8:09
  Ugarles: And that's not even a given. A year ago, and I'm still. No.
• 8:14
  George: I thought they were putting him into a meat grinder from which he would never emerge. Yeah, I mean, I think. And we actually talked about that. Right. I didn't.
• 8:22
  Propter: I. Come on.
• 8:24
  Ugarles: When you were on. I think we. He was early in his rookie year when he looked like a real catastrophe because he weighs 150 pounds and your offensive line was vaporware.
• 8:35
  George: Right. And like the thing in the NFL is like, you can, you can be a little, little guy with a decent arm and eventually turn into something good. Doesn't happen often, but it can happen. It's just really hard to do that when your offensive line thinks that pass blocking is a sort of optional thing you can do when you feel like it.
• 8:52
  Ugarles: I mean, it's tough when the quarterback's big. You know, guys like, you know, like, there have been a host of like, really very good quarterback prospects ruined by concussions. And you like Vietnam vets diving under couches when a car backfires. Like, they get gun shy when their offensive line doesn't hold up at all. And it's, but it's especially pronounced if you're like a little guy and you can't get the edge.
• 9:23
  George: And yet Bryce Young has hung in there and kept plugging away and he looks decent now and, and a decent quarterback is sufficient to win the NFC South.
• 9:32
  Propter: Yeah.
• 9:33
  Ugarles: Because, oh man, is great. Coker finally looked like he realizing his potential and then Coker got hurt. And so, and so that remains to be seen. And obviously, while I'm not rooting for Jalen Coker to have any long term health impacts, I'm also not looking for him to recover in any timely way. I know. And you're, you're doing this as they kick off, right? Or are they in the late game?
• 10:02
  George: They are. Eight, 20. Yeah, they're. They're Sunday Night Football. That's actually in Charlotte. Yeah.
• 10:07
  Ugarles: Oh, okay. Because the Saints play the Falcons tomorrow night and the Buccaneers are on four. They're owing four. And their, and their quarterback, I think was either was undrafted like an undrafted kid out of Kansas because Baker Mayfield got hurt.
• 10:27
  George: So if, if Charlotte can't win tonight against the Lions, then whoever wins Falcon Saints tomorrow will be the leader of the NFC south by a decent margin.
• 10:36
  Ugarles: Yeah.
• 10:37
  George: Four weeks into the season at 2 and 2.
• 10:39
  Ugarles: 2 and 2.
• 10:41
  George: Yeah.
• 10:41
  Ugarles: So at least like, look, if, if the Panthers lose and the Falcons and Saints tie, we will once again have a week with a losing record leading the division. So there are even worse options on the board. And I, and I wouldn't have been worried until the injury report came out this week. Michael Panicks had his first good game in a Falcons uniform last week. He, you know, besides Bijan running for almost 200 indefinitely, having well over 200 yards combined, Drake London not only kept blocking like you know, a road grader in front of Bijan. He had like a hundred and something yards receiving and so that's starting to look dangerous. And Caden Ellis is out and Carl Granderson is out and we're down to like two mediocre running backs and our star left tackle is out. You were not even a star. He's only a star in New Orleans minds because we see him like because he's young. It's his second year and he was very good as a rookie and had a very good camp and then got hurt early in the year. But his replacement stinks. And Talese Fuaga, who was the first round pick the year before has not been very impressive. And one of our guards is not very good. And so we've got a good left side of the interior line and the rest of it is shaky. And so we have a really good set of receivers but no particular rushing game to speak of. And it just keeps getting weaker with injury and so it, that sucks. You know, we haven't even. And our, and our receivers have been great, even with Jordan Tyson are, you know, picked in the top 10. Hasn't played it down because after an injury riddled college history, he like including an injured ankle in. At the very end of training camp, he stepped funny on a reception and injured his other ankle. And so it's just a, it's a weird situation because I thought that we would have a cakewalk in this very shitty division and now we look like post Antietam and so we're gonna be in trouble too. So who knows?
• 13:11
  Lowtax Speedrun Enjoyer: I, I gotta say I think it's nice that they're letting Michael Penix finally play a little bit before he goes on Social Security.
• 13:19
  Ugarles: Yeah, well, I can't even make that joke. Tyler Shough is in his second year and he's so, you know, he has like four master's degrees I think because he went to seven colleges or something.
• 13:38
  Lowtax Speedrun Enjoyer: Oh, Tyler Shough, where did he put. He played Oregon.
• 13:45
  Ugarles: He played at Oregon. He played. He finished at Louisville. But Oregon was one of his stops. Yes, he. I think he was like. I think he started at Oregon and backed up Marcus Mariota his senior year. Like that's how long he was bouncing around college, you know. So I can't do the Social Security jokes, not least because I somehow ended up on the AARP mailing list. You know,
• 14:16
  Lowtax Speedrun Enjoyer: I remember, I remember him because Willie Taggart was recruiting him when he was the coach at Oregon and he couldn't get him to come to Florida State when He came and in fact he couldn't get any quarter quarterback to come to Florida State. During his tenure
• 14:36
  George: we had a, I think there was a Saints fan that was looking for our we play what in November. Am I remembering that correctly? I think y' all are coming up here. I can't remember but she had been looking for tickets on to the Panthers game and she posted a tick tock being like who do y' all think you are? Like Yalls football team sucks and you're trying to get these tickets at these prices. Like what are you talking about? And it's like lady, do you know who owns our team? Like we're, we're run by like the most dead eyed like macro hedge fund guy you can imagine and we have the ticket prices to prove it. Like this is not because we're a good football team. Like step into our dojo being Charlotte sports fans and paying the price prices we do for this crap.
• 15:24
  Ugarles: Yeah, I mean you should be looking on the secondary market anyway because by week nine everyone is dumping their tickets and looking to forward to basketball. You know like that's one of the guys who we have on who is a season ticket holder because you know I do a Saints podcast with Elron Mexico and we have a guy who is a season ticket holder. Ron is not. He watches most of the games at home and he, his section is routinely overrun by visiting fans. You know until they get back to like breeze era winning. You know New Orleans is not a rich town man. People get season tickets and then you know they go to a couple of games and a lot of stuff is for sale. And so you know there are always tickets available, you know, if you and like you are going to be able to get game six, you know, week 17 tickets to see the jets up here for like, you know, like when someone broke into my car and left two more, there were two tickets on the front seat. Someone broke in and left two more. Like that is what the end of the season is going to be like. So you know, like don't complain about the prices for a team that you think sucks. The locals know it sucks and they'll make their tickets available to you.
• 16:54
  George: Yeah, exactly, exactly. And yet like we sell out all the time. I don't understand the people that are going to football games eight times a year for it's a six plus hour endeavor if you're a season ticket holder. And it's just I, I, I don't know, I, I spend just that much time at soccer games but it's spread out into much smaller, more digestible chunks, to say the least. What were you going to say, Propter?
• 17:20
  Propter: Speaking as. Speaking as an NFC west veteran, one of the nice things about playing in a bad division is that your team is still in the hunt very late in the season, even if you're bad, that, you know, Those, those Week 15 games.
• 17:32
  Lowtax Speedrun Enjoyer: Wait a minute. The NFC west is a historic division right now.
• 17:37
  Propter: Historically, we've been bad right now. We're good right now.
• 17:39
  Lowtax Speedrun Enjoyer: Okay.
• 17:39
  Ugarles: I mean, they're not. Who is your team? Just to make sure, I'm a Seahawks guy.
• 17:44
  Propter: Okay.
• 17:44
  Ugarles: Because I was going to say the 49ers have had very few, like, genuine fallow periods, but the Seahawks have.
• 17:52
  Propter: Yeah, I mean, yeah, it was, it was, it was a long time in the wilderness and growing up and then, you know, we've been. We've been pretty good for the. Since the Pete Carroll era.
• 18:04
  Ugarles: Yeah. But I mean, a funny thing for me is I grew up, of all things, a New York kid rooting for the New Orleans Saints in the NFC west, the dumbest division in the NFL, because it was the Saints and the Ram, I mean, the Niners and the Rams and then late additions who just got hucked into the west when the league started expanding. The Falcons and the Saints. So they would play all of their games at 4pm because they were mostly being played for a West coast audience.
• 18:46
  Propter: I kind of think that's a better time for football anyway, to be honest. Like, I like, I like the late afternoon slot, but that may be something that I've just become accustomed to in, in my time as a, as a West coast sports fan on the East Coast. But what I was going to say was, was that one of those Seahawks seasons where, where we backed into the playoffs as a losing team was. Was the beast quake season where we beat you. You're 13 and three saints.
• 19:11
  Ugarles: I know.
• 19:12
  Propter: In, in Seattle.
• 19:14
  Ugarles: Yeah, of course, that came up this week because we, you know, we were talking a little about, like, stuff making a lot of noise and, you know, coming out. Well, no, because we came out. It was the home opener for us. We played our first two games on the road and so jumping out to. We ended up losing to the Raiders, but jumping out to an early lead probably had people going a little nuts, you know, I mean, if you've been paying enough attention to teams that are not your own, you know, the Saints lost the strip sack touchdown when they ruled that Jared Goff's hand was moving forward. A kind of bullshit tuck, ruley kind of ruling. And then this Week, it happened the other way. It wasn't a touchdown, but a critically timed strip sack that looked identical. And they were like, no, you don't get that one either. And so it's like. Well, I'm going to be honest, we definitely. Our Shough definitely fumbled that ball, but that guy fumbled the ball, and we just got screwed in both directions. And so I was like, that probably was the loudest the stadium's been since, you know, the Beast Quake was in Seattle. But like. Like, the volume of people going nuts. But I got. I remember every fucking thing about that game because we started. We took the lead early, and we were closing in a way where you probably felt the loss was inevitable. And then, you know, he pinballs off literally all 11 of our guys separately and dives, you know, barrel roll into the end zone. Me.
• 20:57
  Propter: Yeah, it was. It was something that. The fans up there get pretty excited when they get a taste of something going on.
• 21:03
  Ugarles: So.
• 21:05
  Propter: But you guys. You guys did get royally screwed that year by having to play on the road despite. Despite being a premier seed. So.
• 21:12
  Lowtax Speedrun Enjoyer: Yeah. Was that the. Was that the year y' all went seven and nine, Propter?
• 21:16
  Propter: That is correct, yes.
• 21:17
  Lowtax Speedrun Enjoyer: Yeah, that was like, what, Pete's first or second year?
• 21:20
  Propter: First year. So, yeah, we. We won that one. We were in a week. A week 17 duel with. I think it was the Rams, where we had Charlie Whitehurst quarterbacking because Hasselbeck was hurt. So.
• 21:42
  Ugarles: And no one realized it at the time because they just, I think, mostly saw you as, you know, seven and nine, luck, box, whatever. But that was, like, it turned out to be the Legion of Boom. Like, that was the emergence of, like, a truly kind of historically good defense, but with Matt Hasselbeck at quarterback and not a whole lot else to recommend it. And so 7 and 9 before becoming, you know, the super bowl loser to super bowl winner, you know, team that everyone remembers forever. But, like, it was a very embarrassing game to lose. But the. I mean, I don't even remember who your tight end was, and I don't think he was of any import, but he kept putting Roman Harper in a blender at linebacker. Just couldn't cover him. And so he was. He'd just ground us to dust besides Marshawn lynch running the ball, but that was tough.
• 22:39
  Propter: Yeah. Yeah.
• 22:40
  George: These.
• 22:40
  Propter: These refugees from Buffalo, you got to watch them all the time. So we want to talk some law. Is that. Is that our next stop here? Because I saw that.
• 22:52
  George: Yeah, we can talk. We can talk.
• 22:53
  Propter: That I saw. We had. Alito gave a pretty good interview this week that I'm sure is crossed, you
• 22:57
  Ugarles: know, that I didn't listen to that because I'd need, like, blood pressure medication or something.
• 23:03
  George: There's definitely a category of person in U.S. politics, you know, discourse, whatever, where, like, I actively avoid hearing what they have to say because it's only going to make me mad and there's no. No other value to it. And Alito is so deep in that category that, like, yeah, you couldn't pay me to read what he had to say about anything.
• 23:23
  Propter: It's not even. Like it's predictive of his jurisprudence, right? Like, I mean, he's going to say whatever, whatever he wants to say in the interview, and then he's going to go rule. However he then wants to rule based on entirely contingent facts and political pressures.
• 23:34
  Ugarles: It's more predictive than you'd think because right now he's like, very Facebook grandpa in all his interviews, talking about the oppression of the religion and, you know, these, you know, people who, like, he basically, anyone who disagrees with him is part of some movement that is void ab initio. And so, like, all of this, no one really reads the opinions, but, I mean, who's he talking about? Everyone reads like, the critics really do read the opinions. And so it's all. It's all phony. It's as phony as. That's my wife's flag. You know, like, my wife is on flag duty at the house, and I didn't even know she liked spongebob. Like, okay, you know, whatever.
• 24:24
  George: I'm on flag duty in my house.
• 24:25
  Propter: We got it.
• 24:26
  George: We got a better southern flag out front. And that is. That is firmly mine. I think my wife would much rather there be no flag at all. But there you go. Take a note, Alito.
• 24:36
  Ugarles: No, I had two. I had two friends in law school who clerked for him when he was on the first circuit and respected him and liked him. And neither of them are politically conservative, obviously, or I wouldn't make the point. You know, then it would just be, like, normal. But they were, you know, they came out with it and one of them is just like, you know, tugs collar. But, like, what he's become because he just doesn't really recognize him. But I don't even know what to say to that because I know what, you know, eating house he was in at Princeton and what he wrote about making the eating houses, you know, not male only and things like that. So his, you know, the comments he had about, you know, diversity admissions back there. So he's Always been a pig. And, oh, he's always been a reactionary. He lied about the work he did to get himself insinuated into the Reagan Justice Department, all that stuff. So. So I've always considered him a huge phony, but of course, I wouldn't have known that when I was in law school. I wasn't that keyed into that level of. I mean, I wasn't getting an appellate clerkship, so doing the research into Alito would have been a huge waste of my time. And so I didn't know any of that until he became a Supreme Court nominee and everything came out, and they were like, oh, but he's very respected, and he's this and he's that, and. And then, you know, you'd get, like, one or two people writing an article, and they're like, yeah, but what about all this? Which seems like he's got a pretty reactionary mind. And he disavows everything. The way Roberts disavowed the memo he wrote for Rehnquist about the Voting Rights Act. And everyone disavows everything they've ever done because they always have some kind of excuse for it. But.
• 26:38
  George: But, you know, turns out that memo was pretty appreciated in terms of Roberts's journey.
• 26:44
  Ugarles: Yeah. In the words of. Was it Danny Green? You know, they were who we thought they were. That's who we thought they were. Right. So I don't know. You know, so I make. I'm still a little in touch with one of them, and so I make fun of him about Alito.
• 27:04
  George: There was also an article this week about the Chief justice, and unfortunately, it involves a place that we have repeatedly had to return to on this podcast, and we're going to do so again. That's right. John Roberts has a vacation home in Maine. We're going back to Maine. Let's go. So the New York Times article was quite funny.
• 27:26
  Lowtax Speedrun Enjoyer: Ed's face.
• 27:29
  Ed: I mean, I was in Maine this week. I did not see John Roberts. It's fine.
• 27:32
  George: Yeah, no, you wouldn't. Because his vacation home is this very isolated island.
• 27:40
  Propter: You.
• 27:40
  George: You can't take a ferry to it. It's no cars on the island kind of deal. And it described this arc where when he became the Chief justice, people were extremely sensitive about bringing up court stuff. Right. Because he clearly treats this place as his escape and to get away from D.C. and also, Mainers are just like that, heavily derogatory.
• 28:06
  Ugarles: And. And, well. But didn't want to hide in his house. And so he would be out right about. And so everyone Thought it would be unseemly to harass him and he was nice to everyone. Like, it's another thing where it's like how you judge. You know, if you're the Supreme Court justice, I really don't care if you tip well. But that is kind of the, you know, I mean, I care if you tip poorly, I suppose, but I don't. You don't get credit for tipping well. And so, you know, he, that was, you know, everyone's like, oh, there's John again. Right.
• 28:43
  George: He would do a bit where when the lobsters were ready. Were ready. Oye, oye, oye, the lobsters are ready.
• 28:48
  Ugarles: Right.
• 28:48
  George: Like, you know, little stuff like that. And he wouldn't get invited to the neighborhood potlucks and people were friendly with him and he was just another resident of the island. And now that's not so true. And there are kayakers with banners in front of his house on a regular basis. And I gotta say, like Maine, sometimes you surprise me. There are some good ones. No one on this podcast, but there are some good ones.
• 29:12
  Propter: The term the article used was kayaktivists, which I enjoyed.
• 29:15
  Ugarles: That's good.
• 29:16
  Propter: Yeah, no, that one. Send that back immediately.
• 29:21
  George: And apparently now he's not getting invited to the potlucks. He's not, it's not part of the line.
• 29:26
  Ugarles: You can't buy a pierogi anymore. Yeah. Which is true New England island culture.
• 29:33
  Propter: Yeah.
• 29:33
  Ugarles: Is if you, if you, if you act in Trump's interest, you can no longer buy pierogate.
• 29:38
  George: The other thing that's interesting too is that the article sort of focused on, is that as the Supreme Court has become more polarizing and more politicized, they have both literally and metaphorically retreated into bubbles because of the security implications of the new situation. And so now, you know, when, when Roberts first bought the house, if you needed to go borrow a cup of sugar, you could have walked over and knocked on the door and borrowed a cup of sugar. And now that. Not so much. And I think that's an interesting comment on, you know, the, the self reinforcing aspects of polarizing and radical politics on the people carrying it out. Because again, like Roberts is carrying out a radical political agenda. That's his whole deal. Sometimes he does it in ways that look reasonably informed about what he can get away with and other times less so. But like, at the end of the day, he's, he's trying to leave his imprint on the. And like, it's harder, it becomes harder for him to actually realize how disconnected he is from the real world because he's pushed things so far already and needs literally, guys with guns to keep him from getting the feedback that his neighbors want to give him.
• 30:50
  Lowtax Speedrun Enjoyer: I used to be able to borrow this from you. Yes, John, that was before you tried to reinstate the three fifths compromise. Yeah.
• 30:59
  George: Yep. Although I'm not sure that the Mainers are mad about that one specifically.
• 31:04
  Ugarles: I mean,
• 31:07
  Propter: historical reasons. I will say that I think. I think the Kavanaugh assassination attempt maybe weighed more heavily on the psyche of the judiciary than people outside the bubble necessarily give it credit for. In fact, many of our listeners right now may be going, wait, what? Kavanaugh assassination attempt?
• 31:25
  Ugarles: Yeah, I have no idea what you're talking about. Actually. I remember the protests outside his house, but I have no recollection of a Kavanaugh assassination attempt. Did the guy have a guffaw fund me. So.
• 31:37
  Propter: So the Kavanaugh assassination attempt. And. And I think it's reasonable to use, you know, air quotes on this. Was a guy from. I want to say he was Californian who traveled to the D.C. area, found
• 31:48
  George: out where he believed by train he traveled from which, you know, if you want to talk about mens rea. Like, yeah, going from Cali to D.C. by train. You had some intent there, fella.
• 31:59
  Propter: Yeah, you.
• 32:00
  Ugarles: The whole way.
• 32:00
  Lowtax Speedrun Enjoyer: Wait, I thought that was. I thought that was the White House correspondence guy.
• 32:06
  George: No, I'm pretty sure it was Kavanaugh who went.
• 32:08
  Lowtax Speedrun Enjoyer: Who went from California to.
• 32:09
  George: I'll fact check myself on this. Go ahead, Propter.
• 32:12
  Propter: Maybe. Maybe they both. I. I do remember the Kavanaugh guy also. Also. Also took some. Some means of travel that seemed insane, but part of that was because he had a gun, so he didn't want to fly, I think. Anyway, he had a gun. He came to the D.C. area. He. He went to what he believed to be Kavanaugh's address. I don't remember if he got Kavanaugh's address right or not. He looked around for a while. He Service. And he walked up the street and turned himself into. To the police. So that was. That was the Kavanaugh assassination attempt.
• 32:42
  George: I got this wrong.
• 32:43
  Ugarles: He.
• 32:43
  Lowtax Speedrun Enjoyer: He.
• 32:43
  Propter: He.
• 32:44
  George: At the time he. She now uses she her pronouns. But at the time he.
• 32:51
  Ugarles: Oh, good, that'll help before the court.
• 32:54
  George: Right, so I'll use current pronouns. She took a train, a plane from. To Cal to Maryland, and then a taxi and was wearing black clothing while carrying a suitcase, backpack and several items and weapons, including a Glock 17ammo, zip ties, tactical knife, pepper spray, a hammer A screwdriver, a nail punch, a crowbar, duct tape, a pistol light and boots that were padded to be stealthy. So I mean, yeah, intent was absolutely
• 33:20
  Propter: there, but also didn't actually, you know, do anything that came all that particularly close to killing Kavanaugh. Such as directly attempting to kill Kavanaugh. At no point was there ever, you know, a one, a one step move to injure cabinet.
• 33:40
  George: No, she, she literally, she got to within sight of the house, saw the U.S. marshals and then basically said I can't do this. Texted her sister what she was planning to do and then called 911 and reported a mental health issue including her plan to assassinate a Supreme Court justice that she was now backing away from.
• 33:58
  Ugarles: So she didn't actually.
• 33:59
  George: It's not like she was in trigger pulling range. This wasn't the Pelo at home invasion or anything.
• 34:02
  Ugarles: Okay, I'm not anyone lawyer here or listening, but if you have not yet committed a crime, but your loadout is that crimey, I strongly suggest not calling 911 and reporting yourself as almost committing a crime and then texting your sister about how badly you want to commit that crime. You have accomplished nothing. You haven't even committed a crime and you will never see the streets again.
• 34:45
  Propter: Yep, yep, pretty much. So like I, I think that was a little bit, I think that was a little bit brain breaking for parts of SCOTUS and you know, like there was a lot of talk about how the week of the, of, of, of the abortion.
• 35:02
  Ugarles: The Dobbs overturn.
• 35:04
  Propter: Yeah, the week of Dobbs really, really hampered trust on, on the Supreme Court. And that seems silly, right? Like, you know, this, this, it's a little precious to insist that this stuff is hyper important when obviously people are doing this for motivated reasons, whatever those motivated reasons were. But my sense is that at least for some of the principals, this, this kind of thing actually matters to them. That, that, that whether or not they're right to be in their feelings about it. They actually kind of are in their feelings about it.
• 35:36
  Ugarles: Yeah. When it is convenient for them.
• 35:40
  Propter: Yeah, I mean I, my sense is that Alito is in his feelings constantly and it's never convenient for anyone but.
• 35:49
  Ugarles: Yeah, but I think so much of it is kayfabe. I mean they are the going back to balls and strikes. The pretense of. The pretense that they're apolitical, the police. The pretense that they're just calling it as they see it. The pretense that when they act in opposition to a fairly established case from A stare decisis perspective, you know, long standing precedent. And then they create loopholes or decide which cases are more worthy of stare decisis than others, which things become major questions, which is an essentially boundless judicially determined inquiry. And then claim its humility. Right. Like the most offensive of all of it is they think that they can referee interbranch coordination between the executive and the legislative under the banner of humility is disgusting. Just say what you're doing. And so I don't care if Alito is offended. And the fact that he can't even keep the mask of gentility on is proof that he should be institutionalized. Like he. The one thing that you have to do as a pretend neutral is at least act neutral and not. And moan about the mods constantly. You're a super mod. What do you care if someone on the, the View thinks that you've crossed the line? You're on the Supreme Court, she's on the View. What are you doing?
• 37:42
  George: And that's the entire, we talked, I mentioned before the sort of self reinforcing aspect of the security bubble they're in. Disconnecting them further from negative feedback and therefore, you know, perpetuating the, the power, essentially power trip that the entire institution is on. Same thing works the other way around with regards to the Supreme Court and public relations. The more disconnected they get from the public, the more insulated they are from the bad decisions they make and the impact on public opinion, the worse the decisions they, they make are. So Supreme Court approval is at a record low, essentially. At a record low. And it's only going down from here. Like there is no plausible way for it to go back up. And you know. Well, there are possible ways, just not
• 38:26
  Ugarles: with all that security.
• 38:28
  George: Right, exactly. Right. Like the, the, you know, you can imagine some hypothetical where a bunch of Justices retire for some reason and a bunch of very different, different minded Justices are appointed and whatever and some hypothetical where they sort of undertake a project to reconnect with the American people and re. Earn their trust. That's like, that's certainly something that could happen. It's not going to though. So you know, like there, it's only going to get worse. And you know, I, I think, you know, all, all evidence points to this accelerating until we reach some sort of actual crisis point. Maybe that'll come sooner, maybe it'll come later, but it will kind of.
• 39:05
  Propter: I actually, actually wanted to ask Charles about that specifically. Was it, was it a surprise to you that neither Thomas nor Alito retired?
• 39:13
  Ugarles: Yeah, I mean The. They have two years. You know, like, it doesn't matter. I guess it. They probably should have retired before the crisis period of the midterms and the potential of a lost Senate. On the other hand, you can't really filibuster Supreme Court justice anymore. If we learned anything from the Ginsburg to Barrett move, they have no problem between November 6th and January 6th shoehorning someone in if they have to. Like, they will literally just speed run that process. And so I think that it is shocking, but the Breyer retirement worked, but was probably later than it should have been. And I think he was definitely informed by Ginsburg ruining her entire legacy by staying on the bench so that her replacement could whittle her down to, like, nub in the back of a book of history's least effective women after what should have been, like, an incredible, incredible career. Right. Everything that she, you know, she had, her. She had her flaws. And people can nitpick this, and I think they. And I don't want to sound like I'm defending the founding Fathers or anything, but her impact in very specific ways was more important than any of that until she decided she was uniquely qualified to be the voice of the left and women on the Supreme Court. And the fact is, at a certain point, you're just one in nine people, and you are a counting unit. And you have to have the humility to get out while your legacy can be preserved. You can even choose your fucking replacement. That was the lesson of Kennedy. If you do it right, you sit in a room with the president and go, this was my favorite clerk, and she is currently doing this. Figure out a way to get her in position to nominate her for the Supreme Court and handshake. And instead she's like, I can push up my way through liver cancer because I'm that important. And it turns out liver cancer got hands.
• 41:52
  Propter: You know, I mean, she. She made it. She made it.
• 41:54
  George: What?
• 41:54
  Propter: Another. Another. Another eight years after. After the last. After. After the time window when she should have gotten off. Yeah, which was. Which was prior to the 2014 midterms.
• 42:05
  Ugarles: But she spent those eight years losing. She was in the minority. And so what good did she do? She wrote eight years of, you know, increasingly frustrated defense, increasingly frustrated dissents. And I gotta tell you, ineffective dissent is a young person's game because you get to live to see them be the majority. Otherwise, it's old man yells at Cloud, who cares? Retire.
• 42:34
  George: KBG are going to bear fruit eventually in a way that those dissenters.
• 42:38
  Ugarles: Thomas did. Rehnquists did. Scalias did. Why? Because they didn't fucking die while they were doing nothing but writing dissents. That's your job. Your job as a Supreme Court justice is not just to vote and it's not just to write. Well, in a really politicized world, your job is to make. Make sure that your impact outlives you. If you die out of power, it dies with you. And that is really the problem that she was too, and like, it hap. Like I can't even. My ego as a fucking nobody is out of control. I can't even imagine what would happen to me if I had that kind of actual responsibility and power. I mean, we might be talking magneto level psychosis, so I get it. But you have to listen to a different person who, like you, trust, who keeps you in check. And she didn't. And that's where we are.
• 43:46
  Propter: You know, I'll do. I'll do a little bit of Ginsburg apologia here, but like, that person for her was her husband who had just died. So that was kind of unfortunate timing.
• 43:59
  Ugarles: Yeah. I mean, look, her daughter was my. Her daughter was a professor of mine at Columbia. She taught me. She, not she. Her. You know, her subject matter expertise is copyright. And I didn't take that, you know, intellectual property. But, you know, she did like a legal professions class. As you know, before your regular classes start as a 1L or overlapping at the very beginning, sort of teaching you how to read cases and how to blue book, because everyone's coming from, you know, everything from philosophy to nuclear physics. And so here's how you read cases intelligently, which a lot of people just don't know how to do. Right. Some people take to it very naturally, and some people can't sort of separate the wheat from the chaff. And so you have to, like, these are the. This is how lawyers talk to each other. Right. And so that was the class I took from her. I'm sure that even though she would never publicly say it, Professor Jane Ginsburg had her own reservations about preserving her mom's legacy on the court. Right. There were other people, but I guess she thought that Obama, who was, you know, probably younger than I am now, even though he was the President of the United States. I think she, like the report, is that she was kind of offended at being asked to step aside in a way that she found fairly crude. But another part of the job is being like, hey, fuck you, man. But okay, you know, you could also
• 45:46
  George: make the argument that. That, look, she almost made it like, it was not a huge gap between when the college football teammate of mine whose wedding she officiated happened and when she would have been safe to be reappointed, be. Be replaced by a Democratic president. You know, obviously it didn't work out that way. And I think all the criticism of her, with the benefit of hindsight and based on what we knew at the time, is entirely legitimate, but it is worth doing the thought experiment of what if she hangs on for another six months? I think it would have been nine. Six months. Nine months.
• 46:22
  Ugarles: We didn't have the Senate.
• 46:25
  George: We didn't have the Senate, but we
• 46:26
  Propter: did need to take.
• 46:27
  George: I mean, what are they going to do? Are they going to really keep the Supreme Court open for four years? Maybe. I mean, maybe they would, but that's a little different. That.
• 46:34
  Ugarles: I mean, shoes and hand grenades, buddy.
• 46:39
  Propter: Right?
• 46:40
  Lowtax Speedrun Enjoyer: You know, we did have the Senate after 2020, though.
• 46:44
  George: Oh, yeah. Sorry. What am I even talking about? Yes, we did.
• 46:46
  Lowtax Speedrun Enjoyer: Yeah, that was the one.
• 46:49
  Propter: Yeah, we took it.
• 46:50
  Lowtax Speedrun Enjoyer: That was the one where Oof. Osoft and Warnock post over the top.
• 46:55
  George: So it's not hard to imagine a universe where she hangs on for another six or nine months or whatever the number is. I can't remember off the head. It's less than a year and everything is fine, despite the incredibly silly decision.
• 47:07
  Propter: Right. I mean, also, also, like, we lost. We lost what? We lost like nine Senate seats in 2014. It was an absolute bloodbath. So like, like that, that also, that, that was a predicted flip. Like, it was clear that we were going to lose badly in 2014. And it was arrogant of her to stay on. But, like, that was, that was the kind of beat you can talk yourself into thinking is not going to be as bad as it turns out to be. And then, But I mean, like, the
• 47:32
  Ugarles: fact, the fact is Obama hadn't even changed the curtains yet when he was like, so who wants to ret? Because we got work to do here because a lot needs to change. And no one was ready for it. Breyer said no. I'm sure Breyer was asked too. He wasn't that much younger. Ginsburg said no. And
• 47:55
  Propter: there you have it.
• 47:56
  Ugarles: There you have it, you know?
• 47:58
  Propter: Yeah. And you know, like, I mean, it's a game of inches in a lot of ways, right?
• 48:01
  Ugarles: Like, like, yeah, he had turned his head like, like a half second later. Literally. Game of inches. We're not even, like, it's only half a joke, you know, Not a game of inches.
• 48:15
  George: A game of inch, to quote Al
• 48:16
  Propter: Pacino Yeah, you know, like, Clarence Thomas is sitting in Thurgood Marshall seat. And a Thurgood Marshall had been in slightly better health for another year. Clinton would have made that appointment.
• 48:28
  Ugarles: So, yeah, I mean, people get mad about Thurgood Marshall retiring and giving that seat to Clarence Thomas, but they're too young to remember Thurgood Marshall was gonzo. Like, every Trump press conference today is basically Thurgood Marshall during oral argument. He was fucking old. He was really sick, and he was falling asleep on the bench routinely. And I don't mean that as an insult. He was an old man being old. And when he waited literally as long as he possibly could because he knew the cost, and there became a point where it was untenable even for him, and he stepped down, you know, and he was. But he tried so fucking hard to will himself across the finish line and just couldn't.
• 49:34
  Propter: Yeah, and, and, and he never had a better time to retire either. I mean, that. He was, that was, that was, that was year.
• 49:40
  Ugarles: 12 years of Republicans.
• 49:42
  Propter: Yeah. So, like, I'm not, I'm not trying to dog Thurgood Marshall for this. I, I wish his pancreas had held up a little better. Yeah, but that's, that's hardly his fault. So. Yeah, I mean, not in the sense we're talking about anyway, I guess. I guess.
• 49:58
  Ugarles: You know, I mean, who know, Like, I don't know if people were saying it 12 years earlier. Right. Like in the, in the dying days of Carter, but not really. Carter got his picks. You know, that was before the picks
• 50:14
  Propter: were quite this polarized.
• 50:16
  Ugarles: Correct. And. And p. And people didn't really retire early that much. It wasn't as tactical. Usually when they were retiring, it was because they had a sinecure of some kind, or were Abe Fortis or were David Souter, who's like, ugh, I'm just sick of this. You know, like, that's just the craziest retirement is that David Souter just got disenamored with being a Supreme Court justice. Like, it was. It's just inconceivable, you know, I mean,
• 50:53
  Propter: like, that matters, though. Like, it. Whether or not these guys are enjoying their jobs makes a difference to their, to their eventual tenure.
• 51:03
  Ugarles: Well, but, I mean, part of the reason he wasn't enjoying his job was that the court was sliding rightward and everyone was yelling at him all the time because he was just, he was drifting a little left where. Which, you know, the conservatives always got very mad at because they thought Brennan was going to be a conservative Catholic. They didn't know a lot about him. They thought that Souter was going to be much more conservative than he was. They thought that Kennedy was going to be a more reliable vote than he was. And so they were constantly feeling like let down in one way or another. And Souter's the first one who actually seems to have been palpably bothered by it, especially finding himself in dissent all the time against what he thought were the, you know, real conservative principles, you know, and so he was done. I don't know.
• 52:01
  Lowtax Speedrun Enjoyer: He also just didn't really like Washington, did he?
• 52:04
  Ugarles: No, no. But he didn't go to Maine or anything.
• 52:07
  George: Who does?
• 52:08
  Propter: Yeah, I do.
• 52:09
  Lowtax Speedrun Enjoyer: It's pretty relatable.
• 52:13
  George: No, you don't.
• 52:16
  Propter: It's great for like, Washington's a great
• 52:18
  George: town, except for all the people that live there.
• 52:20
  Ed: Propter's just there for the free buffets.
• 52:28
  George: So, Charles, we also wanted to talk a little bit about the challenges that the Article 3 judges are having taking the, frankly, insane rulings coming out of the Supreme Court. Not only just like, bad, like, you know, they're, they're, they're wrong, they're unlawful, they're just silly. Major question Doctor is obviously the best example, but there's a ton of them, right, where it's just like you're, you're handing down precedent that just is really hard to implement.
• 52:56
  Ugarles: Yeah, I mean, it's like Del fought,
• 52:58
  George: doing their best and yet.
• 53:02
  Ugarles: Yeah, yeah, I mean, it. I can't even imagine how frustrating it is to be a Trump appointed district court judge. Trump nominated. Whatever. Don't email me a Trump nominated district court judge who rules against Trump on the grounds of. Are you fucking kidding? Like, even for me, I know you pointed me, appointed me because you thought I was going to be a hack, but this is nuts. And then the Supreme Court is like, not that nuts. New rule, not that nuts, you know, because that keeps happening. The lower courts who are bound generally, not even generally, but the rule is until the Supreme Court actually overturns something, you can't read tea leaves. Right. You can't say, well, I'm doing my vote counting in my chambers in Pascagoula and I know that the fifth Circuit will have my back and I feel fairly comfortable that with a 6, 3 majority, I can rule this way. Now, that used to be rare, if not verboten. Right. You would do what Judge Posner used to do. Judge Posner used to write these, you know, rulings. One of the most famous ones was an antitrust case called sun or Foil, where he's like under the rules of the Supreme Court right now, this, the, you know, whatever side loses. And then the rest of his opinion is why it should be overturned. Right. So he, like, wrote a brief to the Supreme Court saying your jurisdiction is the only one who can change this absolutely stupid rule. Rule in antitrust. Now, I don't remember the case well enough to know if I agree with Judge Posner, but at least it respected the institution of the Supreme Court to say, until you tell me differently, I have to rule this way. But I think we're sympathico here in, like, giving this a more law and economics gloss, and it should probably come out the other way. And the 5th Circuit has kind of stopped doing that. That, you know, you have all of that much hackier judges who are outcome oriented, like Kare and Amarillo and Eileen Cannon in Palm beach and Oldham and O', Connor, both in tech. O', Connor, I guess, is on the 5th Circuit, but. But okay, but O', Connor, I think, is a district court judge, like, so they have just taken it upon themselves to start predicting what the Supreme Court is going to do. And they did it especially for Biden to stop anything useful that came out of the Biden administration. And now all of the stuff that was thought to be out of bounds by executive order, because executive orders are really just supposed to be prioritization documents for agencies. Like, this is what. They're. What they're memos, but they're memos to agency heads. Right. It's not that they don't matter, but it's like, this is how we want implementation to go, and this is how we intend to interpret things. People would write signing statements, but it was mostly considered a bully pulpit thing, except you got to sign into or veto laws and give kind of a general direction to independent agencies. And now he's like, all right, if you put, if you put alternate. If you put artificial intelligence in a grant proposal, it gets rejected automatically because I think there's a different marketing work, and that's insane. I don't know what to tell you. That's just a crazy way.
• 57:21
  George: Charles, just so you know, I just turned off your camera because you're okay. Your local recording will be fine. But I turned off your camera because we're having a really hard time following you, and we think it might be a bandwidth issue. So I'm just gonna turn off your camera to see if that helps.
• 57:35
  Ugarles: I take my face away. It's fine. I know hard feelings, things.
• 57:41
  George: I. I think that helped. Yeah.
• 57:44
  Ugarles: Hard to say something look at it now. So.
• 57:48
  George: Oh yeah, that's definitely better than it was.
• 57:50
  Propter: Okay, well, okay. Waste in a B way.
• 57:54
  Ugarles: So. I can't even wave questions.
• 58:01
  Propter: No, you cannot. Sorry. We are now, we are now flying blind. This is, is.
• 58:06
  Ugarles: Yeah, no, because I was kind of giving you the, like the go ahead. I'm not talking.
• 58:10
  George: Okay.
• 58:11
  Propter: We talked, we talked about major questions doctrine a little bit. It seems to me that it, it poses a particular kind of a time bomb effect because the thing about MQD so far is that it's, it's, it's something that a, the Supreme Court has made up. And just, just to give listeners a little bit of context, Major questions doctrine is, is the John Roberts brainchild that under certain circumstances the Supreme Court specifically has the, the right and ability to step in and say, no, that's absurd. There's no way that's what, that's what, that's what Congress meant by that.
• 58:49
  Ugarles: Well, I mean, let's, let's just say it is essentially a counter textualist principle because what agencies are supposed to be doing is interpreting the text of their delegated jurisdiction. And because the administrative state has been in operation for over a century, a lot of the agency delegations are now fairly summary. They create agencies, they give them a broad remit and they tell them essentially to kind of design their own jurisdiction. Right. We want you to cover this and then there will be questions that come up decades and decades later. The place that it seems to be most pronounced these days is in environmental law where they will shut down. Like they will issue regulations about emissions limits that are very difficult for large sections of existing industry to meet, or at least expensive, if not difficult because they are high pollution industries. And unless you force them to make a pocketbook choice to invest in less polluting processes, they just don't do it. Naturally they do to some degree because they will try to figure out cost effective innovations, but if you don't really put a gun to their head, there are fewer incentives to find those things. And so it becomes a major question to the Supreme Court if some kind of regulation upends the economics of an industry in a way that is more severe than kind of tinkering around the mark margins, you know, but it's bad. It is principle less except as an eye of the beholder exercise, no matter how much they try to persuade that it is something other than that.
• 1:01:05
  Propter: Right. I mean, in some ways it's essentially a delayed blast judicial veto over legislation. And that's something, something that to me seems to be A pretty big problem for our ongoing system of government. But there was kind of a different direction I wanted to take this one. Which is. Which is that one of the other things we've seen emerge in particularly the Trump 2 era is a lot of conflict between the different tiers of the hierarchy of the judicial appellate system in the United States. That you have district courts that are saying absurd things, you have appellate courts, circuit courts that are saying different absurd things, and the Supreme Court correcting one level down, that it's become, I think, increasingly common for courts at every level to take positions that they know are going to get chucked on appeal. And in some ways, this is kind of the funhouse mirror of what you were talking about earlier, where there's this. This unreasonable expectation by. By the Supremes that their subordinate courts will. Will act in accordance with what SCOTUS knows their future wishes are, even if the decision hasn't come down yet. This is. This is. This is kind of the other case where you've got, for instance, the redistricting thing. I think it was Missouri, where. Where. Where you've got district court saying one thing, the appellate court saying another thing, and then SCOTUS issuing these repeated pushbacks on just issued decisions. Like. Like. I mean, they're. They're slapping things down within eight hours of them being filed. Like. Like this. This is what SCOTUS looks like when it's very, very angry.
• 1:02:45
  Ugarles: Yes. Yeah. Though, I mean, the Missouri situation was unique, I guess, because Kavanaugh was very clear. I think about. I mean, this is, again, a little in the weeds. The Purcell principle is basically, you don't make changes in the waning months of an election to election law, though the Supreme Court kind of exempts itself from Purcell, except insofar as it doesn't want to, because that's how the Supreme Court treats everything from ethics rules to anything is the, you know, what are you going to do? Appeal. So. So they do that a lot, but they are a little more serious about Purcell and the lower courts. And so what happened in Missouri was kind of crazy, which is they crammed through a really bad gerrymander, and they jammed it through right before the primary. And so the litigation over the gerrymander wasn't resolved until after the primary, and they was resolved against the gerrymander in the district court court, and it was resolved against. I think. I think the. I think the circuit court flipped it back, and then the Supreme Court said no, or the Supreme Court threw out the district court injunction, and then the appeals court enjoined it again and the supreme court threw out that injunction. And what ended up happening was the district court said, we are enjoining the gerrymandered maps. You have to use the 2022 maps that were voted on by referendum. Right. As I'm talking, I'm remembering the specifics. Missouri had a referendum imposed map and the legislature tried to overrule that map. And there's a vagary of Missouri law that says you can only set the overruling of a map in one session to take effect for a vote the next section. So you can't just overrule the referendum. You can essentially pass a bill that says in the next session of the legislature we will attempt to overrule the referendum. But the referendum automatically gets one voting cycle. And Kavanaugh twice told Missouri, stop using the new map. You have to use the referendum map. It goes back to the circuit court. And the circuit court says, well, actually, since the primary took place under this map, it'll alter too much to use the new map. So you still have to use the new map. I mean, it would. It would alter too much to go back to 2022. So you have to use the new map. And Kavanaugh is like, what is your fucking problem? We've already told you twice to use the 2022 map. Like the district court said, we genuinely mean it. The Missouri secretary of state. State has, you know, is like, is suing the Missouri Supreme Court for, you know, for viol. I don't even remember. It got super complicated. But Kavanaugh finally put his foot down and was like, we're not joking about this. You have to use the 2022 map. The legislature acted improperly. And they don't get the benefit of it. It. And they certainly don't get the benefit of it In September of 2020, you know, of an election year. And so. And so they flipped it back. That is super rare because usually what happens is the supreme is the supreme Court has been in the business of allowing the most kind of over the line presidential edicts just stand right. District Court writes 150 page opinion about how this breaks with every legal tradition the country has. And the Supreme Court's like, yeah, but I don't know, we'll just let that play out. You know, even with the more recent. Even with the more recent voter ID database stuff, at least they said you can't use the databases for the 2026 election. But they didn't enjoin it for like the creation of this database that everyone thinks is going to sort of have more bugs than a summer picnic. They don't care.
• 1:08:05
  Propter: My question is, do you think there's, there's some chance that we're going to see lower courts try to pick up major questions doctrine as something that they can use all also like no, they do. There's no, there's no inherent reason that this are. They already have.
• 1:08:18
  Ugarles: I sure they didn't say major questions is a Supreme Court doctrine. They said it's an interpretive doctrine. It was just created in the Supreme Court. And so you have to litigate over whether that's something that people do. They say that the, they say that the agency overstepped. You say it in the district court court. You say the agency overstepped their bounds because even though like textually it might mean this, it, you know, like they've also added cost benefit analysis to the way agencies have to review things. And so they go, look, they didn't do the cost benefit analysis. And even if they did do the cost benefit analysis, it's so disproportionate to the way that this particular remit has been interpreted by the agency since the law was passed 60 years ago ago that Congress should get to weigh in on it again. Even though like basically the way administrative law has worked for decades has been unless Congress acts, they are presumed to be comfortable with how the agency is using their delegated authority. If they can't overturn it, then the agency is fine. And the Supreme Court has stepped in in two ways, one in major questions. One is major questions as we've been talking about. And the other is a kind of hypertextualism where agencies used to be allowed a little leeway from eight from administration to administration to change their priorities within what was considered a broad boundary of interpretive grace. Right. Like the words are kind of ambiguous. And as long as you kind of stick to the program, the Supreme Court is going to be pretty hands off about it. But that's not Gorsuch's world, that's not Kavanaugh's world. They know what words mean better than anyone else. And so they are very comfortable telling agencies that they are wrong on the breadth of their, on the breadth of their jurisdiction. And so they have, you know, it's very, you know, very drowned in a bathtub sense of how small they want agency delegation to be. But they show favoritism obviously because they're, they're like minded conservatives. Once they restrict or re channel the force of the agency's powers, they're much more Comfortable with how the delegation is working.
• 1:11:20
  George: Yeah, it's all just an exercise in pushing forward their preferred policies. Like, it's all kfab.
• 1:11:27
  Ugarles: Yep.
• 1:11:28
  George: It always has been.
• 1:11:29
  Ugarles: Right? I don't know that it always has been like, it always has.
• 1:11:34
  George: Well, that was. That was gonna be my next question. Like, when was the last time you take the Supreme Court at face value as what they were trying to do was call balls and strikes, etc. Etc.
• 1:11:44
  Ugarles: Etc.
• 1:11:44
  George: I mean, I think different things.
• 1:11:48
  Ugarles: I don't think it's a binary. I don't think they have ever been a body of calling balls and strikes. I mean, you go back to Marbury v. Madison and, you know, it's John Marshall saying, we are the Supreme Court and we get to tell you that some presidential act is impermissible. Whereas I think what is more recent, and it's always been, you know, with short blips, a kind of classist institution, because the Supreme Court was always coming from the same place that the leaders of the country were coming from. And so. But the. But it's not binary between balls and strikes and kayfabe. And now I think it is more pretend that in Than it has ever been, with an open, menacing sneer, which wasn't ever what it was like. They're always at the. Like, maybe you can call the gentility kayfabe. But I think it was realer than what you see now, which is a Supreme Court that's like the. The conservative side wins. And here is a concurring opinion which says the conservative side wins, and fuck you to, too. That's new.
• 1:13:12
  Lowtax Speedrun Enjoyer: Yeah.
• 1:13:13
  Propter: Yeah, but I. I mean, a lot of it comes down to the personalities involved. Right. Like, I mean, you go back 20 years, and the pillars of the left and the pillars of the right on the court basically got along.
• 1:13:28
  Ugarles: They still seem to.
• 1:13:29
  Propter: I think there were some things that were pretty bad about that, but they
• 1:13:34
  Ugarles: somehow they still seem to. But like, people talk about, like. Like the. People talk about, like, you know, Scalia and Ginsburg playing tennis and going to the opera together and things like that. Like, who cares? You know, who cares if they're friends? It's just the least important part of their job. And the. It's just something to write about. Like, if you treat the. If you treat the Supreme Court like the society paid. Also if you treat the Supreme Court with, like, exalted reverence, you're making a mistake about what their role is. But it. But at least. I think they used to be more serious about what the job was like, even Though they were humans and had individual politics and had grown up in a very political world. Like, no one gets to the Supreme Court with a, without having the right friends to have been appointed to a lower court. Right. None of them are going straight from an elected position. Right. They're going from a state supreme Court or they're going from. Well, you know, I know, but like, but that was, that was Souter and that was Brennan. Right. I think black men, right. So it's been a long time now. They're almost all. But they're evil. Either people who have gone through the federal appointments process or they are people who have, who have gone through the state ranks. I mean, the only person who doesn't seem to have done that in my memory is Sandra Day o', Connor, who was on an intermediate appellate court in Arizona, but went to law school with Rehnquist and had a lot of friends in high places because she was active in Arizona politics. And so, so, you know, the number of conservative women with enough academic and, or political and or judicial pedigree back when she was up for nomination was, you know, near zero, you know, so like.
• 1:15:55
  George: And now you don't even need zero. Right?
• 1:16:01
  Propter: Yeah, yeah, there, there definitely has been, has been kind of a change also to how the appointments process works, particularly in the age of Trump, because here, here in the second term, we're no longer doing, you know, Federalist Society approved appointment lists for, for lower courts either that.
• 1:16:22
  Ugarles: Right.
• 1:16:22
  Propter: Trump is appointing the people he wants to appoint rather than, rather than basically sticking to the pledge he made during, during his first term that, yeah, I'm going to let Fed some doc pick, pick the lists and like Federalist Federal. There's a lot of things wrong, wrong with Federalist Society, but they are not fully overlapping with Trump in terms of their desires. That, that, that these are, these are, these are distinct teams within, within the larger conservative movement. And one of them has a much longer horizon than the other one does.
• 1:16:56
  Ugarles: Yes, I think that's true. There's less cult of personality in it.
• 1:17:01
  Propter: There's, there's a lot of overlap.
• 1:17:02
  Ugarles: I think that's right. I mean, I do think they're, I think they do have a longer timeline because there is not, as far as Trump is concerned, when he dies, the world turns off. You know, so he doesn't have to worry if Vance will carry on his legacy because he may issue an executive order that Vance has to be buried with them. You know, like, it's like he's in a pyramid. Oh, please.
• 1:17:32
  George: We should only be so lucky.
• 1:17:35
  Lowtax Speedrun Enjoyer: I think they should. I have said I think they should do that. They should take all of the maga chuds and bury them with him like the, the pharaohs used to do with their, with their slaves.
• 1:17:48
  Propter: Yep.
• 1:17:50
  Ugarles: And then, and then they tell you that you, you don't just entomb them
• 1:17:54
  George: all in cyber trucks in some mountain somewhere.
• 1:17:56
  Ugarles: Well, someone would have a cyber truck.
• 1:17:58
  Propter: We can do it there.
• 1:18:04
  Ugarles: Oh, it's.
• 1:18:07
  Lowtax Speedrun Enjoyer: As long as it's not the Memphis one.
• 1:18:12
  Propter: Well, that, that happy thought is probably as good a note as any to wrap on Charles. It's been, it's been an absolute pleasure having you on.
• 1:18:19
  Ugarles: Thank you so much.
• 1:18:20
  Propter: Thanks for stopping by the show. You can hear Charles virtually everywhere else on the Internet. He's, he is, he is prolific.
• 1:18:31
  Ugarles: Can I get specific?
• 1:18:33
  Propter: We'll stick, we'll stick a. Please do.
• 1:18:36
  Ugarles: Okay, so there's the no homework podcast that I do with Patrick Cosmos and Elron Mexico that is at no homework website. It's football season so I do city saint country saint with Elron Mexico ago. So just look for that there. I have a link tree. Look for that at you girls and you'll see the 52 plus one podcast challenge that this is a part of where I'm trying to guest on lots of podcasts in 2026 and you know, invite me on and the one last sneaky plug. On Tuesday my wife Zine Apesh is officially released by or books. It is about the his. The first issue is about among other things the history of helping hands the helper monkey capuchins and what a kind of decades long fraud it was. And it is both cool and very interesting and well researched and funny.
• 1:19:42
  George: Hell yeah.
• 1:19:44
  Propter: I did not walk into this expensive expecting, expecting a monkey plug on this episode. But I'm glad we got there. We will stick those, those links in the show notes as well.
• 1:19:54
  Ugarles: Thank you.
• 1:19:56
  George: All right, well for normal men, that's our show this week. I'm George in Charlotte, North Carolina, in
• 1:20:03
  Propter: D.C. i'm Propter in outer Florida.
• 1:20:06
  Lowtax Speedrun Enjoyer: I am Lowtax Speedrun Enjoyer and from Boston, Ahmed.
• 1:20:10
  Propter: Stay normal y'.
• 1:20:10
  Lowtax Speedrun Enjoyer: All.
• 1:20:11
  Ugarles: There.