 We're back. One of my favorite shows in the world, Community Matters. We have the former dean of the William S. Pristich and School of Law, Abhi Soyfer, and he's a professor in constitutional law, like all his life, I think. And then we have my brother Gene Fidel, who teaches at NYU Law School, and he follows constitutional matters very closely. And I want to talk today about the Supreme Court, because it's a different phenomenon than it was even a year or two ago, seems like. Have politics ruined the Supreme Court? Or put another way, has religion ruined the Supreme Court? Abhi, you want to try to answer the title question? Could you do that? Well, I think politics has always been part of it. But boy, these folks are, in fact, remarkably partisan. And they don't seem to care about the things that have given the court credibility. So using the shadow docket, we can talk about that some more, to move mountains, or at least to move cases, and to do it in some very important cases, is really shocking. And certainly not what the court used to stand for. There's a great column by Linda Greenhouse in Today's New York Times, which we get online here. And she talks about how Justice O'Connor cared about the consequences of her decisions. Justice Breyer is famous for that. Many of these justices seem not to. They are so convinced of their own correctness that they don't care where the chips may fall. You know, I often wonder, I see all this news criticizing the Supreme Court and taking issue with what it does and why it does these things. And I wonder whether those guys see the same news and whether they give a rip about the fact that millions of people in the country no longer have confidence in them. Are you saying they really don't care? Well, let me give an example. And this one involves religion. Last November on the eve of Thanksgiving, the court intervened against the po-mo regulations because of the pandemic. And they did so on an emergency basis. There was a schedule here a couple weeks later in the Second Circuit, the usual Court of Appeals Avenue to the Supreme Court. They took this case off the shadow docket, and they issued an emergency injunction. They stopped things. And they did it in the name of free exercise of religion. The actual regulations were not in effect. So what was the emergency? Well, they might come back, said the court. Now in the recent and infamous, I think already infamous, a decision they made in the Texas abortion context, they did the opposite. There's a law about to take effect. No emergency here. We'll let it go forward. That is really not caring about what the consequences are and really what it means for the institution to not have oral arguments and not have briefing. But just go ahead, because that's your view of free exercise of religion, or that's your view of abortion. That is pretty shocking. It is. And it also suggests that they're not in touch. They're simply not in touch. And in a larger sense chain, what does it mean when you have a Supreme Court that is not in touch? Over the long term, what happens? Well, first of all, I'm not sure I would say they're not in touch. They may not be in touch with things that are important to you or me or to Abby, but I think they are in touch with that school of thought on the right. That is increasingly salient in the American legal community. It's the world of the Federalist Society, which is a pipeline for young conservatives to advance almost inevitably towards federal judgeships through the clerkship pipeline. So, you know, they're in touch, but it may not be the kind of contact that you think. Now, I think there is an argument to be made, but it's not a question of being in touch. Their understanding of the country is an arid understanding. And by they, I'm talking about the conservative justices. Their understanding is an arid understanding. It's an understanding that claims to be originalists. In other words, we'll just figure out by consulting dictionaries and that kind of thing, what the Constitution and the Bill of Rights meant when they were originally ratified in the 1700s. And, you know, end of story. That's all you have to do. We're kind of notaries with a lot of dictionaries available. To the extent you can call them out of touch, they're out of touch with what many people, and I'll say most people who've thought about it, understand as the trajectory and the narrative of American history. It's a narrative that bends towards freedom instead of being a narrative of consulting dictionaries. And what you're seeing, and I think, you know, Avi is quite right to mention the shadow dock, and we have to unpack that while we're on the phone here. But what you're seeing for the first time is a willingness of the court, the majority of the court, to depart from precedent in ways that turn back the hands of the clock. Until now, and the court has overturned its own precedence. What is it, Avi? Maybe 200 times, 220 times. It's not a big number over the country's entire history. It's not an enormous number. But what you're seeing now for the first time is not overturning Plessy against Ferguson, which allowed, you know, from the 1890s allowed separate but equal for a greater good and an enlarged notion of equality. You're seeing turning, you're seeing departing from precedent in ways that reduce human freedom in the country. Now, from their perspective, and Avi, you know, started to unpack this a bit, from their perspective, at least some of the things that the majority is doing are liberty expanding, namely free exercise of religion. So, you know, if you ask them, they'll say, well, you know, we don't do, we don't make anything up. We're just trying to figure out what the First Amendment meant in 1791 or so. And, you know, if the chips fall one way, that's fine. If they fall the other way, that's fine. But in fact, what we're all we're trying to do when you talk about, you know, for example, the New York COVID litigation that Avi mentioned, all we're trying to do is expand people's ability to express their religious preferences. So, you know, from their perspective, it's perfectly, it's perfectly respectable. But from the standpoint of, let's say, the secular state, it's perfectly unrespectable. To add to that, and to take up a point that Gene raised, it's very hard to make an originalist or a textualist argument for states' rights. They met in Philadelphia because the Articles Confederation had states at each other's throats or whatever states have, and it wasn't working. And so they needed national power. That's why they met in Philadelphia and went beyond their charge, as it were. Similarly, after the Civil War, states' rights wasn't all that big in the view of the North, right? They won the Civil War because states had said states' rights and also had said, and we can succeed. So when did we get states' rights? Well, the answer is we really didn't, except the court has had a lot to do with creating it. And a good example of that is in Shelby County, which is when Chief Justice Roberts, maybe before he began to change because of some of his colleagues, which we can get to. It's more of an institutionalist now than he was then. But he says he paraphrases the 10th Amendment. And he says the rights not specifically granted to Congress or reserve to the states or the people. But instead of, he adds specifically, which is not in there, it had been in the article. So it's not there, and Madison himself opposed it three times. And instead of saying the people, his paraphrase says citizens. Here's a big difference as we are finding out more and more these days. So you got it wrong? Or is this planting the seeds? I don't think it's just sloppy law clerks. Let me say this, by the way, because Jay, I think there's a faulty premise in the framing for our conversation tonight. I never pick a fight with the host, right? I read that somewhere. But the premise is that you could actually... Where did you read this? You could actually isolate the Supreme Court and have a conversation about the Supreme Court. People do it all the time. But in fact, you can't talk about the U.S. Supreme Court in 2021 without talking about the federal system, without talking about the role of the states, without talking about the stresses that are being placed on the federal government that was established at Philadelphia. And the Supreme Court, whether through inaction or malevolence or fixation on dictionaries. And I keep talking about dictionaries. That's my way of making fun of textualism and originalism. What you're seeing is basically an all-out assault on the very notion of the United States as a nation state. You're seeing it in Texas. Here's a fact. If you don't mind, I'm sort of shifting the focus here by 10 degrees, maybe 12. But a lot of these issues seem to be coming up in Texas, whether it's voter suppression, the abortion, strange abortion legislation that has been enacted. So what's the story in Texas? The story is that originally, what is now Texas was part of a northern Mexican state called Coahuila y Texas. And it was a magnet for people from what later became the Confederacy. It was a, there were people who emigrated from the United States to that state of Mexico with a view to expanding a slave economy. Well, a funny thing happened. But Mexico became independent. And one of the early acts of the Mexican state, the Mexican, United Mexican states, was abolition. So all these people who were looking forward to Texas as being a slave, another slave state were suddenly disappointed. And events unfolded in a way, as you know, that part of the Mexican state seceded and became the Republic of Texas. And it was basically hardwired into their documents that it was going to be a slave economy. So, yeah, I think you cannot understand what's going on in the United States generally without understanding the state of Texas. And you cannot understand the state of Texas without understanding the Republic of Texas. Abbe, you're nickel. Abbe, and you might throw in there about whether the Civil War is really over. Oh, well, or it's over, but who won? Well, thank you for our heavenly host saying that. I think I just want to pick up on the textualism from it. I've just finished an article, a draft of an article, about the Civil Rights Act of 1866, the First Civil Rights Act. And it's very important. I've been writing about it for decades to no effect. But Supreme Court had a case called Comcast about racial discrimination with the allegation. And it's Gorsuch who's the big textualist and he writes for the court. I believe I was your lawyer in that case, wasn't I? Indeed. I was, yeah. We filed Mimika's brief with the help of Gene Piedat. I haven't let it go, Gene. So all of a sudden, the court is talking about torts. Now the word torts is not in the statute. The statute's a very broad statute. It overrules Dred Scott. And that's why they constitutionalized it, sent three months later by the same Congress to the States to ratify. So all of a sudden we're talking about torts and the rest of the opinion is wrong about torts and its theory of what is necessary for a racial discrimination claim. But ignores, all but ignores, mentions, quotes what the language is, but ignores that it's a contract's case brought against Comcast and that that's what the statute, among other rights, protected. So the textualist doesn't care about the text at all. Now back to the U.S. Supreme Court because Jay, look, we're getting paid, Avi, to talk about it. The checks are in the mail. The checks are in the mail. Well, what about the balances? What about the balance? No, but it might be worthwhile to talk about some pending cases, you know, that the court is facing or is likely to face. We're going to hear more. Obviously, there are abortion cases from Texas that are going to come up from Mississippi. There's a case that's going to come up. And the anti-abortion forces in the United States are going to try to pick off the case of Roe versus Wade. Whether they will or not, or whether it will be further hollowed out so there's nothing left of it, it does make a difference actually, whether it's overturned directly or just, you know, continued that dying death by a thousand blows. But there are other cases that are in the pipeline are likely to be in a pipeline. I'll give you an example. And some of these things are, you know, they're not quite at the Supreme Court, but they're going to get there. There's a case in the U.S. Court of Appeals for the District of Columbia Circuit called Al Hela, H-E-L-A. I signed a friend of the court brief on this. And it has to do with what are the rights of the handful of people who are still being detained at Guantanamo. Remember Guantanamo? Remember Guantanamo? No, the whole country, including the U.S. Supreme Court, is suffering from Guantanamo fatigue. And it turns out that despite the four chances the Supreme Court had now many years ago to set some ground rules as to who had rights to what at Guantanamo, there remain judges who are perfectly willing to say the Supreme Court didn't mean what it clearly said in the early Guantanamo cases and are willing to say that Guantanamo detainees don't have any constitutional rights, whatever, which has some implications. So that's a case that is quite likely to get to the Supreme Court. Now, do I think that the Supreme Court is suddenly going to recover from its Guantanamo fatigue and leap at the opportunity to pin that down? No, I don't. I think the U.S. Court of Appeals in Washington, which is going to have all of the active judges participating, what's called an in-bank hearing, they'll resolve them. That will probably be the last word. Another major issue that's coming up is, you know, we've had this very messy endgame in Afghanistan. And, you know, are we now finally at a point, this does relate to the detainees at Guantanamo, by the way, are we now at a point where somebody can finally say, actually, the war is over? And if the war is over, and if we're applying something like the Geneva conventions, then your obligation is to repatriate the people that you've taken prisoner. And, you know, eventually, eventually, eventually, somebody's going to have to say, this war really is over. And the courts have not been willing to get into that, because some people say it's a political question, and so on and so forth, or it's a gradual matter, and the administrations have been sloppy with their language. But it's a little hard now, with the fall of Kabul, and the collapse and vanishing of the prior government, to say, oh, no, no, no, it's business as usual. You know, we still have to hold these people. Of course, Guantanamo is now like Spandau Prison, if you remember, where we wound up, you know, at the end of the day, I think one elderly ex-Nazi that we were holding, and it was costing a fortune. On the other hand, Spandau Prison in Berlin was cheap compared to what we taxpayers are paying to maintain Guantanamo Bay. It's millions of dollars per year per detainee. So, you know, is the Supreme Court going to, you know, feel some impulse to, you know, suggest to the executive branch, guys, let's call it a day. This is over. You can't keep doing this. At a certain point, they've really got to do that. They can't continue to be missing an action on an issue like that. Another set of issues, and I'll turn it over to Abby in a minute, but the whole voter suppression business. And this is, we're heading into, if we ever left it, we're heading into a period of hyperactivity politically in the country. The next round of elections is going to make the last one look like, you know, a small penny ante gin rummy game. This is going to be wild. And it's already wild in the state capitals. And with these crazy pieces of litigation that people have come up that you're trying to unravel the last election when they should be paying attention to the next election. And then, of course, the state legislatures in some of the so-called swing states are fiddling with the electoral process so that they're politicizing what traditionally has been the apolitical function of the state, the secretaries of state, the election officials. And, you know, is that going to get litigated? And then there's going to be reapportionment issues. Is that going to get litigated? Is the Supreme Court finally going to say, well, actually, things have gotten totally out of hand on some of these political things that we've waved off on the past. I actually don't think they will do that. They just, they don't want to go there. And I don't think they will go there. Abby? I agree that it's a huge issue. And I think they are already going there. The last day of the regular full opinion term, they decided two cases which involve elections. One is about disclosing the names of big donors to nonprofits. And the other was about Arizona changing its laws to make it a little tougher to vote. And what they did wasn't terrible, but what the court said was really pretty scary because this is an Alito opinion out of Arizona. And they've added a requirement that you vote in your own precinct, which, of course, is standard, except they throw out the ballots if you don't. Most states, they'll help you, right? So you have a preliminary ballot and they'll keep it and maybe try to help you. But no, they throw it out. The second is you can't bundle. So Native Americans in Arizona live on reservations and therefore don't really have access to the U.S. Post Office as much as most of us. And so Arizona, not directed at them, of course, says the court, but they burdened the vote. So Alito says, but voting itself is a burden after all. It takes some time. You have to make some effort. And so an additional burden, not such a big thing. And it doesn't violate the Voting Rights Act of 1965, Section 2, even as amended in the early 1980s. And he says, because after all, because we have this burden, these are widespread requirements and they have a long pedigree. Well, the long pedigree is the reason for the Voting Rights Act of 1965. They were neutral laws on their face. They were great. But no blacks were allowed to vote in Georgia because they didn't get the right answer when they were quizzed about the Georgia Constitution. All they were asking was, well, do you know something about the Georgia Constitution? It was a trick. And it was a neutral on its face statute. And so long pedigree is scary and saying, well, one burden is not so bad and the next burden won't be so bad. So I'm afraid that's where we're going on these voting cases. And they said they're out of the business of partisan gerrymandering in the root joke decision a couple years ago. And so what does that mean about being out of the business of reviewing whatever these legislatures do? Speaking of Native Americans and these kinds of ever suppression measures really do impact on Native Americans, west of the Mississippi, more likely than east of the Mississippi. But there's a fascinating case out of Oklahoma. It's fallout of a decision of a year or so ago that held that despite what many people, including the government of the state of Oklahoma thought, the Oklahoma Indian tribes, the so-called five civilized tribes, historic phrase not mine, retained their reservation on a certain level. In other words, that they were still Indian country in what used to be the Indian territory. And the consequences of this are that a lot of serious crimes that were being prosecuted by the state of Oklahoma actually had to be prosecuted in federal district court. It's a complete artifact. And the Oklahoma authorities are making a big hoo-hoo about this. But it's so much so that they've gone back to the Supreme Court for no apparent reason, aside from the fact that they have sort of a bad feeling about having lost the case. And they might have to spend a little more money or they might have to prevail upon the U.S. Department of Justice to prosecute some of the cases that have been thrown out because they were tried by the wrong sovereign. So it's a kind of footnote, but there's some really interesting issues coming up in the Native American area. They're always with us. They don't always get a lot of attention. I should mention one thing. There's an organization called the American Law Institute, which is lawyers and law professors like Avi and judges that puts out a series of books called restatements. They're quite influential documents in American law. And for the first time, the ALI has issued a restatement of federal Indian law. The light went on and it was done by a wonderful team of lawyers. I was on one of the advisory committees that was concerned with that. But it's almost like reading a history book to read federal Indian law, except it's now. These doctrines are with us, even though they date to John Marshall and they date to King George III. So it's quite an interesting legal development. But should we talk for one second before we break about the shadow docket that Avi mentioned? No, why don't you define what that is and what affected it? Well, yeah, first of all, there are different schools of thought on what constitutes the shadow docket. I mean, the Supreme Court does a lot of things aside from issuing opinions after full briefing and argument, lawyers getting up and people from the Solicitor General's office wearing a frock coat and in front of the nine justices and the courtroom artists making pictures of things and long and heavily footnoted opinions. A lot of what the court does is tiny little orders, emergency applications of one kind or another. And historically, they've been of interest to scholars and they were obviously of interest to the parties, but they haven't contributed that much to the country's direction or to the jurisprudence. They've been highly peripheral. What has happened now and what people are now focusing on as the so-called shadow docket is the court is using some of these occasional actions to actually take a position on some potentially quite hot button legal issue. What's wrong with that? They can't do everything. They only decide like 65 or 70 cases a year the old fashioned way. So some of this is inevitable, but when you have an issue decided even by implication in a shadow docket order, what you're missing is full briefing, a fairly leisurely process. There's nothing hurried about it. An opportunity for the litigants to be heard, an opportunity for friends of the court, which may be organizations, it may be religious groups, it may be scholars to make their views known through briefs that the justices and their law clerks actually read and that are not without influence. So all of that goes by the boards. And suddenly something just drops out of the hopper at 12 o'clock at night. And there you have it. It's one paragraph or two paragraphs that says per curing by the court and maybe one or two of the justices right say more or less irate complaint either about the dissent, either about the substance or about the fact that this train was moving in with the night without the normal attributes that you expect from a constitutional court. And this is a tremendously vicious development. And that's why lawyers and scholars have become quite worked up over it. And justices, if you read some of the dissents, the dissents from these shadow docket lawyers, they're as hot and as acerbic as any of the dissents, which can get pretty tough. So Avi, what effect does this have on public confidence in the court on the way that the people see the court, on the way that practicing lawyers, even lawyers who appear when they can in front of the court, what effect does this have on public confidence in the court? Well, I think we differ about that, Jay, because I think it doesn't have much effect. I think it should. And I think that people should have had their doubts raised by Bush versus Gore, for example, but nobody seems to have. So of course, Gore was statesman-like and accepting defeat somewhat unlike some others we know of. And that helped people accept it. But it was a terrible thing the court did and they manipulated their rules to do it. And yet the people went on with the reverence or near reverence for the court that the FDR, when he tried to do court packing and so on. So people accept the court partly because they give some reasons, most of the time, not the shadow docket perhaps, which is unlike and real reasons. And they write for time, there's history and an expectation of concurrences and dissents that you're writing for the future. And so, you know, you lost maybe in a dissent, but you're trying to persuade people for the future. And that's part of, I think, the appeal of the Supreme Court. But it also has the fact, I mean, right here in the Hawaii. So we talked a little bit about the free exercise opinions. There are two, one out of the West as well as the one I talked about, in which the court said, free exercise, forget about the COVID rules. And, you know, religion is just like department stores. And how come you have different rules? Well, it isn't because religious practice involves being close for a long time and singing or praying in ways that actually are dangerous. So the effect in Hawaii seems to be that our governor has exempted churches. That's an establishment clause violation if ever there were one. You can't just say churches are exempt, but free exercise is so powerful after these decisions that nobody seems to have noticed. So churches are exempt. And what do you know? They have clusters and so on. So it's a problem. There's another constitutional right that's being privileged. And that is the Second Amendment right. A school of thought has grown up that the pre-exercise of religion and the Second Amendment, to give the expression Trump, other constitutional rights. And, you know, we're having an epidemic of death by gunshots. This morning in Tennessee. If you haven't noticed, not a day goes by. And at a certain point, you would think that somebody would smell the coffee on that. This is intolerable. And similarly, the inability in the eyes of people, I'll say it on the right, to recognize that allowing holes to be blown in a system where we're trying to, trying mightily to keep a pandemic from murdering millions of people, millions of our citizens. You know, somebody's got to smell that coffee also. And it's not happening yet, except everybody's feeling great. Look how great I am on free exercise of religion. Let me say I am in many ways an advocate for free exercise and have been, in fact, filed an amicus brief with Martha Minow once about free exercise in the abortion context. There's a religious argument on the other side we shouldn't forget. But the establishment clause has basically been dissolved. You can't just favor churches. And that goes back to the framers of anything there. So Jean is absolutely right about the second. We didn't have a problem with guns until the Supreme Court through Justice Scalia discovered an individual right. It had been raised for a long, long time and never got anywhere. And then all of a sudden in 2008, we had that right. And now we have a case before the court this term. And even though Scalia's opinion said there can be reasonable regulations. And actually, if it's there for a long time, there's a presumption in favor. People have gotten that part of the opinion, and the court has run off with it. It's interesting that you mentioned Justice Scalia. He said in one of the Guantanamo cases, people will die because of this decision. He dissented and he was a wonderful writer, gifted writer, wrong, but gifted. And he said people will die because of this decision. Well, want to talk about the Heller case, the gun control case now? People are dying because of that decision. There are these paradoxes that are unresolved, the ironies, let's say. But I want to get back to my earlier point. And I find this conversation quite interesting actually to think aloud with you, Jay, and with you, Avi. I think there's an artificiality to focusing on the Supreme Court because so many of our institutions, essentially all of our institutions are under remarkable stress right now. And I actually don't know how this is all going to play out in the next year or two. Are we in a period of nullification? The governor of Texas decides that the federal government, which is responsible for national security, isn't doing a good enough job. So we're going to get all these cars and we're going to park them bumper to bumper to create an automotive wall. You know who likes that? Detroit. It's probably good for truck sales. Well, it's very creative and maybe somebody will take a message from that and do it again in some other context. I guess unless somebody starts to slash the tires. But that's another kind of thing. But this notion of self-help, another issue that came up not long ago was the governor of South Dakota, who I guess wants to be president one day, decided she was going to send a company of South Dakota National Guard troops to help Governor Abbott protect the Republic of Texas from an invasion. What? What? You know, close your eyes and it's 1840 again. So my point is actually quite a simple one. You cannot, it's entirely arbitrary to try to confine your analysis of our current national predicament to any single branch of the government, whether it's the court or whether it's the world's greatest deliberative body, the Senate of the United States, or whether it's the executive branch, which has many unfilled political positions. Well, 100. Even now, yeah. So and then the states, you know, which are, you know, you can't herd the states. But somehow a lot of this is going to wind up in the Supreme Court. And I guess I would like to, I'd like to go back to something you said, Avi. It's the dynamic of Justice Roberts. He's changed. He's moved. And what does that mean? I disagree with that, Jay. Okay, well, you'll get your chance. So how has he moved? And how is the court moving? And, you know, what is what is the retirement if it happens of Stephen Breyer? How is that going to affect things? Where do you say this all going? Because at the end of the day, what Congress does can be arguably subject to what this court does with it, what the states do, including some of the crazy things they're doing, is going to be subject to what the Supreme Court does with it. So at the end of the day, they have a big say in an otherwise dysfunctional government. And so the question I put to you was, where are they going? Well, I think you're being optimistic when you say Congress does something. But yes, once in a while, once in a while, they get past the gridlock, I guess. Thank you. But I want to talk a little about optimism. So one of the things that Gene left out was going to state court and state constitutions and state law. And that has been an option for a long time for good and for ill. But actually, state courts, if they are careful, can protect giving more rights than the Supreme Court has given. If they write the opinion the right way, they can protect it under the rules, at least, from Supreme Court review. So there's that option. And there are some very good state constitutional phrases and some very good state constitutional courts. So there's some reason for optimism there. I think the vote, the next vote is of course very important. And we shouldn't overlook its importance, even if we are pessimistic about what the Supreme Court will say about these voting regulations. So when you have the Texas abortion law, it may drive, and I hope it will drive, people who otherwise wouldn't vote to the polls. There is reason to be upset about vigilante justice on behalf of a right that at least the right thinks is so important. I mean, it's an incredible law, the way they said about trying to insulate it from judicial review. I think Roberts has changed in that he's surrounded now by a majority really that are willing to do things like what they did in the Texas case. So he joined the usual dissenters and he's done that in some other cases too. I think he and the court are to blame for much of the current mess. And Gene has made this point about the Second Amendment, but you can make it about the vote and you can make it about a number of other things, including how far behind we are in race relations. And this gets back to my 1866 statute. Congress really wanted to do something. They recognized that there was a need to protect these former slaves and Southern slave owners were trying to put them back into slavery, basically calling it a contract. And so they were aware of that Third Ninth Congress. And when they said full and equal rights, benefits of all laws, that's part of the statute. Then they said equal protection. So there are paternalism problems with protection, but there was also a notion going back to lock that the government owes protection. And that's why you come in from the jungle or the woods or wherever you are before you become civilized. It was nice to see Gene light up about Native American cases. If the audience does know, he teaches and writes about this stuff. But that law actually, as it is developing, also a reason for hope. There is some new sensitivity, one might say. And Gorsuch's opinion is about an 1866 treaty, by the way, same year as the civil rights statute I've been talking about. But what do you know, we have to pay very close attention to what was said in one and not the other case. So I think there is hope for us, those of us who get to sit on the sidelines and comment in particular have a lot of material. But I think there's hope for the country too. And I think the young people with their concern about the environment and their concern about race relations, if they vote, there's reason for hope there too. An optimist we find among us. Gene, one more thing, I want to very pleased to learn that the Fidel brothers played Penny Ante, Gene Rummy. I'm glad to learn that today. It was canasta, I'm sorry. Oh my God, that's why you always won. So Gene, you wanted to take a different position on Roberts? Yeah, I do. And I'll offer a friendly amendment. My friendly amendment is that I don't think Chief Justice Roberts, you know, who's an adult and he's a person of great experience and intellect and talent and a fully developed judicial personality, I don't think he's actually changed materially. I think what has happened is the court has changed around him. Now, what that means is from an observer's perspective, it could look like he's changed, but I actually don't think he has. But I take hope also in Linda Greenhouse's column today, O'Connor changed and we know that Blackburn changed and Souter changed. So there's hope once you're on the court, you're writing, you know, for history maybe to some extent. You know, you spoke Avi about the reverence that we, I suppose that means not only the practicing bar, but the country has had about the Supreme Court. You know, it's been a sacred cow. And you know, in my view, they haven't been criticized enough as they have gone downhill over the past few years. But what's really interesting, you guys must know more about this than I do, is that Clarence Thomas was quoted as responding to criticism in the press about a week ago. And so that's really interesting that, you know, that the press would criticize the court and then Clarence Thomas would go out there and, you know, and respond to that in the press. I can't remember when the court ever did that. Can you remember when the court did that? Well, famously, a great humorous stuff, his time in the late 1900s, the late 1800s, talked about the Supreme Court following the election returns. Well, they read about the election returns in the press. I think they have always cared and sometimes cared too much. That's why Frank Porter said we shouldn't allow opinions to be anything, but on Mondays, and we shouldn't have photographs and we still don't have TV. They care too much, I think, to some extent, in keeping it all. And I've talked about how important it is to keep some of those traditions, but some of them are outmoded for sure. And then justices are out on the stump, as it were, much more than they used to be. Apparently, Justice Breyer has talked about how very, very, very bad the Texas abortion decision was. Well, that's very unusual. And all those varies. That's not the way he usually talks. So he's letting the public know that he's really upset by what happened. Good. Gene? I'll throw a bit of a curveball here. We live in a media age. We live in an electronic age. Social media, Facebook issues are everywhere, the dark web, conspiracy theories that propagate in the ether. And yet the Supreme Court behaves as if we were still living in an age of will pens. Actually, they give you a quill pen, if you argue a case there, that when you sit down at the council table, it's a little quill pen to take away. And for losing counsel, that's all you're going to get. But no, no, this is really, it's an interesting point, which I haven't thought of. I'm sure has a view on this. But what does it say about an institution that it is so terrified of getting its hands dirty with the ebb and flow of fast moving electronic information that affects every other part of American society, the world of business, Congress, the executive branch, the armed forces, international activities, Bitcoin, there isn't anything in our society, in modern industrial society that isn't touched by 21st century tech. We're on think tech Hawaii. Well, the Supreme Court isn't. And I think the challenge, this is a serious matter, I think, the challenge for the next chief justice and the next generation of justices, well, maybe you're not going to be old folks, is how long can they keep this up? No cameras in the courtroom. How long can they keep that up? Is there a mystique to that that everybody feels, well, no cameras in the courtroom that give out quill pens. This is wonderful. Or does it become something like the Grenadier guards marching back and forth outside Buckingham Palace in funny in funny outfits? I'm serious. And I think judges tend to be pretty conservative personally, even people even progressive, let's say judges, it's the strength that's that their virtues are the passive virtues. That's what we all learn in law school. Isn't that right? Did I get that right, Avi? Yeah, but that was an objection to the Warren court. And so we didn't all, in fact, imbibe that as the main lesson that was the Alex Pickle complaining about the Warren court. And there were complaints from the Fikellians, as it were, Herbert Wexler, about Brown versus Board of Education, no neutral principle. And Charles Black said, Roe v. Wade. Roe v. Wade, you know, was, you know, taking John Hart Ealy, famously, you know, liberal scholar, took aim at it. And in fact, Justice Ginsburg said some, I think, quite unfortunate things about Roe v. Wade. The search for neutral principles, Charles Black said, required the sovereign prerogative of laughter. You don't get neutral principles. And that's important, I think, in response to where Jay has been pushing us all along. But of all people, Gene, you think I know that the hen is mightier than the sword. He's an expert on military justice as well. And they gave you a quill. And here you are complaining. I want to talk about how we shouldn't be so quick to say, well, let's change things. And that is where, of all people, Mike Pence and Dan Quayle, we recently learned, or at least it is reported, thought you got to play by the rules. And one of the astonishing things of the last election and of the court, I'd better say, is that President Trump kept losing in court, as he deserved to, over and over, no matter who had appointed those lower federal court judges or the Supreme Court. He lost, and he lost big over and over. And then the secretaries of state did their jobs. They did their jobs under tremendous pressure from often their own party, and often death threats. And they still did their jobs. So there's something to be said for the society of jobists, people who do the job well. And I think we have to be a little bit careful about saying, well, that's old. And I know Gene wasn't really saying that. Well, we're out of time, gentlemen, but I have two takeaways. One is that when you ask the question, have politics ruined the Supreme Court, you're likely to get a 40-minute discussion without a very specific yes or no answer. That's one thing I learned. The other thing I learned is it would be better for the Supreme Court and all the justices on the Supreme Court, and for the country in general, if the Supreme Court would watch Think Tech Hawaii. I got that. All right. Avi Soyfer, Gene Fidel, thank you so much, guys. Really appreciate this. I'll just go on. Thank you.