Advisory Opinions: "Blaming the Judiciary" – February 3, 2026

Podcast: Advisory Opinions by The Dispatch
Episode Theme: A live recording from Dartmouth College, featuring hosts Sarah Isgur and David French in a wide-ranging discussion about the condition, perception, and future of the U.S. Supreme Court and the judiciary at the nation’s 250th anniversary.

Overview

This episode explores the true dynamics and divisions of the current Supreme Court, confronts myths about partisanship, analyzes the historical power shifts among the three branches of government, including the rise of the "unitary executive," and probes the roots of public dissatisfaction with the judiciary. The hosts are joined by Dartmouth professors Herschel Nachlis and Benjamin Valentino, and field insightful questions from students about the legitimacy and future of the American legal system.

Key Discussion Points & Insights

1. How to Think About the Supreme Court in 2026

• Breaking the "6-3" Myth
  • Sarah advocates seeing the Court as "3-3-3" (three distinct groupings) rather than split strictly by party of appointing president.
  • AI predictions about Supreme Court case splits grossly overestimate the frequency of partisan splits. In reality, "between 40 and 50% [of cases] were unanimous," and only 15% were truly 6-3 ideological divides, with the same proportion having liberals in majority or minority.
• Notable Quote:
  • "When you hear people talk about a 6-3 court, they're just not very good at predicting the outcomes of the cases." – Sarah [04:04]
• Case Examples:
  • Student loan case (6-3 split: highly publicized); immigration case (unanimous but underreported).
  • "Beware pundits that define the big cases by which cases were decided 6-3 because it becomes a self-fulfilling prophecy." – Sarah [05:05]
• Unlikely Consistencies:
  • Gorsuch and Kavanaugh, often seen as "twins," were on opposite sides 50% of the time last term.

2. Judicial Philosophy vs. Temperament

• French underscores two axes for understanding justices:
  • Philosophy: Originalist, Textualist, etc.—do they stick to their frameworks?
  • Temperament: Incrementalist vs. aggressive (e.g., “YOLO Justice Gorsuch”).
• Notable Quote:
  • "One of the ways that I measure judicial integrity is, are you faithful to your philosophy, or do you depart...for outcomes?" – David [07:17]
  • "The judiciary is the last branch really standing. The presidency has broken through all of its bounds. Congress has receded into an ooze of invertebrates." – David [08:24]
• Public frustration often misses this complexity, defaulting to outcome-based evaluation.

3. Blaming the Judiciary – Where Responsibility Really Lies

• The legal process is often the end point for disputes that originate in political or legislative failure.
• Notable listener insight:
  • After a dispute about accountability for Minneapolis policing, a listener realized, "Congress could have done something about this. The President could have done something about this. And we're blaming the judiciary because that's where it lands." – Email recounted by Sarah [10:01]

4. The Federalist Society vs. American Constitution Society

• Federalist Society (FedSoc) grew from marginalized law student beginnings to a dominant network for conservative legal thought and careers.
• ACS, formed later by professors, never generated the same bottom-up energy or defined minority unity.
• Notable Quote:
  • "Do you know what you call a law school with a liberal student group? A law school." – Sarah [13:20]
• FedSoc’s rise was about process, debate, internal ideological coherence, and a tight community—now challenged by success and the loss of minority status.
• David’s Analogy:
  • The FedSoc's formative years fostered tight bonds, strengthened by feeling besieged in the legal academy.

5. Originalism and the Temptation of Outcomes

• As conservatives take the majority, there’s growing pressure not just for process but for desired results ("outcome orientation").
• "On the right, now Scalia and Reagan are kind of out...I want the outcomes that I want. Common good constitutionalism." – Sarah [21:01]

6. The Rise of the Unitary Executive

• Explanation:
  • President as the embodiment of the executive; the line between the President and executive agencies blurred.
• French distinguishes between “soft” and “hard” versions:
  • Soft: President controls policy-makers. Hard: President can fire anyone in the executive at will—a path back to the spoil system.
• "You cannot have the unitary executive conversation without the legislative conversation beside it." – David [29:57]

7. Administrative Whiplash & Activist Complicity

• Obama’s executive actions (e.g., Clean Power Plan) were cheered by activists, then reversed by Trump, then reshaped by Biden—each time, activists cheer. This flip-flop undermines long-term policy and stability.
• "We cannot fix climate change in four-year increments, no matter how much you care about it...Activists have absolutely lost in this issue." – Sarah [32:07]
• Presidents and Congress avoid hard votes; the Supreme Court becomes the “mean mommy,” blamed for unpopular decisions.

8. Existential Stakes & Weakening of the Republic

• Reliance on executive orders for major policy raises the perceived stakes of each presidential election—"everything you care about comes up for this vote" [34:40].
• "About 75% of us don't actually live in a state where your vote really matters...That is not a stable way to run a republic." – David [35:14]

9. Who Decides? The True Question Before the Court

• In most big constitutional questions, the Supreme Court is not making policy but deciding "who decides"—President, Congress, supermajority (amendments), or the judiciary itself.
• "What the Supreme Court is almost always answering is who decides what that public policy is going to be." – Sarah [39:23]

10. International Law and Unlawful Orders

• Soldiers cannot independently declare a war illegal and refuse to serve, but manifestly illegal conduct (e.g., massacre) must be refused.
• Initiating a war of aggression (e.g., a hypothetical attack on Denmark) would be clearly illegal; senior leaders would bear personal liability.
• "You could have something like the International Criminal Court indict Donald Trump, it could indict the Secretary of Defense..." – David [43:48]

Highlighted Lightning Round (48:29)

1. Funniest Justice:
   • "Justice Gorsuch is the funniest justice in terms of laughs he gets in court."
   • "Best justice to get a beer with is definitely going to be Elena Kagan." – Sarah [48:53]
2. Least Likely Vacationing Pair:
   • "Sotomayor and Alito." [49:49]
3. Roberts Replacement if He Died:
   • Kavanaugh or Barrett [49:56]
4. Ivy League Domination on the Court – Good or Bad?
   • Bad. [50:02]
5. State Court Judicial Elections:
   • Sarah: Yes, David: No, but okay with retention elections. [50:14]
6. Pre-Dobbs, Did You Think SCOTUS Would Overturn Roe?
   • "No." – Both [50:42]
7. More Clerks for the Supreme Court?
   • Keep current staff. [50:55]
8. Cameras in the Court?
   • "Absolutely not. Over my dead body." – Sarah, David agrees [51:03]
   • "Transparency is bad. Look what it did to Congress." – Sarah [51:14]
9. Term Limits for Justices?
   • Sarah: Terrible idea. David: Great idea. [51:23]
10. Age Limits?
    • David: Yes. Sarah: Concerned about justices needing post-court jobs. [51:59]

Q&A with Dartmouth Students

Q: Is the Court facing an internal legitimacy crisis?

• Sarah: Not internally; external actors erode legitimacy. Once lost, it’s hard to restore.
  • "I'm a process girl in an outcome world. Everyone sure likes process when they're in the minority." – Sarah [54:11]
• David: The word “legitimacy” is often just code for “I didn’t like a decision.”
  • "'Legitimacy'—Nobody knows what it means, but it's provocative. It gets the people going." – David [55:55]

Q: Why does Congress cede its power?

• Sarah: Multiple factors—Supreme Court struck down Congressional tools (like legislative veto), rise of small-dollar donors fueling outrage, leadership centralization.
  • "Small dollar donors are turned on by anger, outrage, negative polarization." [59:00]
• David: War and existential crisis led to a culture of concentrating power in the executive branch.
  • "Wars are not run by committees, they're run by commanders." [61:06]

Notable Quotes & Memorable Moments

• On AI predictions of the Court:
  "I put all the briefs from last term into my favorite AI...And it predicted...exactly the opposite [of actual outcomes]." – Sarah [03:25]

• On the Federalist Society's singularity:
  "There are literally FedSoc babies running around...I just don't think there are ACS babies." – Sarah [13:57]

• On the decline of Congress:
  "Congress has receded into an ooze of invertebrates." – David [08:24]

• On the unitary executive and Congress:
  "You cannot have the unitary executive conversation without the legislative conversation beside it." – David [29:57]

• On TV cameras in the Court:
  "Transparency is bad. Look what it did to Congress." – Sarah [51:14]

• On who really shapes policy:
  "We cannot fix climate change in four-year increments...Activists have absolutely lost in this issue." – Sarah [32:07]

Timestamps for Important Segments

• [03:01] – How to think about the current Supreme Court (3-3-3 breakdown, AI predictions)
• [06:05] – Judicial philosophy and temperament, the problem with outcome-based evaluation
• [10:01] – Listener realization: Blaming the judiciary for failures elsewhere
• [13:20] – Federalist Society’s rise and its unique campus culture
• [21:01] – Conservatives moving from process to pure outcome-orientation
• [27:00] – Introduction to unitary executive theory and its practical consequences
• [31:05] – The pitfalls of policy whiplash by executive order
• [35:14] – Presidential stakes and their effect on the republic
• [39:23] – “Who decides?” as the heart of most Supreme Court cases
• [43:48] – International law, illegal orders, and commander responsibility
• [48:29-51:57] – Lightning round: justices, court reforms, and legal trivia
• [53:23-57:34] – Q&A on legitimacy, Congress’s power, and process vs. outcomes

Conclusion

In this lively and deeply informed episode, Isgur and French argue that the true crisis is not judicial overreach, but political abdication. The Supreme Court, often unfairly blamed, is simply the last branch standing amid executive expansion and Congressional atrophy. Process, not outcomes, should be the standard for legitimacy. The hosts urge a return to real civic engagement and a renewed understanding of institutional roles.

Memorable Closing Invitation:
“Advisoryopinions@thedispatch.com—Really, you guys should send in questions. We're sorry we didn't get to everyone.” – Sarah [64:04]

For listeners and newcomers alike, this conversation offers a nuanced, accessible, and candid look into how American legal institutions really function—and why public perceptions so often miss the mark.