You ready?

I was born ready.

Welcome to the Advisory Opinion Podcast. I'm Sarah Izger. That's David French.

Okay, this is it's going to be a lot there's going to be a lot less pod and I don't know whether this is going to be a good thing or a bad thing for those listening, but this one's going to be one of those nerdier, legally, or pots. That's just what it's going to be. So we've got a nice little opinion from the Supreme Court that we're going to do a little quicky quick.

Then we've got the fifth circuit abortion pill ruling as well as then the Supreme Court stay to talk about.

And we promised we would talk about that January 6th DC circuit ruling. There's a lot to dive into there. It's one of my favorite opinions of late.

And I want to revisit that lawsuit from Alvin Bragg some new thoughts, new feelings, other cases that we need to talk about a little bit deeper dive there.

And yes, we need to revisit also the clearance Thomas kerfuffle new facts arising means new things to discuss. Finally, that leak dude.

David has feelings on how this has gone down and then we'll end with a little feel good story as we try to do a plate. David, it's a lot.

It's so much, but it's a good pod and I'm especially excited to talk about well, maybe excited is the wrong word, but looking forward to talking about the leak story.

Because everyone's been asking me how could this possibly happen and I have answers.

Well, good. That'll be a nice little dessert. But first, an amuse bush of the Supreme Court in the axon enterprise case of versus the FTC.

This was kind of cool because it came up from the night circuit and you had judge can Lee writing the majority opinion and then judge Bumete writing the dissenting opinion.

And why is that neat because they're friends like real friends real life friends. And so to have them on different sides was always kind of interesting to see who was going to win the battle royale of the night circuit buddy judges.

Judge Bumete coming out ahead on this one, this is a case about when you have to you know quote unquote sort of exhaust that administrative process is involved the FTC axon saying that the FTC's process itself with their administrative law judge was basically unconstitutional.

So do you have to actually go to the administrative law judge first and say hi, we think you're unconstitutional. What do you think have the administrative law judge clearly say no, I don't think I'm unconstitutional and waste your time there or are you allowed to go straight to federal court.

And it was a unanimous opinion in the result. It was eight judges agreeing with justice Cagans majority opinion, but David that concurrence from gorsuch just it brightened my day. And so I thought I would read some from the again concurring in the judgment, which is no, you don't have to argue in front of the agency itself that it's unconstitutional specifically is justice.

Kagan pointed out when your argument is that the process itself is what's unconstitutional therefore even if you get to go to federal court after they find themselves to be lawful.

That the unconstitutional thing has already happened that process that you're arguing was unconstitutional. But here's and it's all about the thunder based in factors thunder based in as a Supreme Court decision that touches on when you're supposed to feel that Congress has implicitly deprived federal district courts of jurisdiction based on an administrative agency's process.

Let me just read from justice Corsuch and then David I want you to happen. There are many problems with the thunder based in project, but start with its sheer incoherence at the outset thunder based and requires litigants and courts to ask whether a quote comprehensive review process exists.

What does that mean? It seems a review process will quote typically qualify as quote comprehensive when quote review in a court of appeals follows the agency's own review.

But typically does not mean necessarily just because an agency can hear a case does not mean a district court cannot to decide whether a particular case belongs in an agency rather than a court you must consult three further considerations commonly known as the thunder based in factors.

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