Advisory Opinions — “Conversion Therapy and Free Speech”

Podcast: Advisory Opinions (The Dispatch)
Date: October 9, 2025
Hosts: Sarah Isgur & Guest David Latt

Overview

In this episode, Sarah Isgur is joined by David Latt of Original Jurisdiction for a spirited, in-depth discussion on recent Supreme Court activities, judicial philosophies, and the nuances of legal methodology at the highest levels. They break down the Supreme Court’s “long conference,” notable cert denials and grants, the controversial sentencing of Nicholas Roski (the would-be assassin of Justice Kavanaugh), and provide analysis of Justice Alito’s recent speech on originalism and precedent. Throughout, the show offers sharp analysis with moments of humor and pointed critique.

Key Discussion Points & Insights

1. The Supreme Court “Long Conference”: Context and Case Highlights

[02:04 – 21:50]

• What is the Long Conference?

  • The Supreme Court’s long conference is when the Court reviews the largest number of petitions but the percentage granted is the lowest of the year due to the sheer volume. This timing factor leads to “grant-shy” clerks and experienced petitioners seeking to avoid this slot.
  • Sarah Isgur: “So because they're reviewing so many petitions from over the summer... they grant a lot of cases, but percentage-wise, there's just so many cases... So clerks are very grant shy at the beginning of their term.” [03:15]

• Notable Cert Denials:

  • Ghislaine Maxwell’s Appeal:
    • The Court declined to hear Maxwell’s challenge regarding whether an Epstein plea deal shielded her as a co-conspirator; deemed a poor vehicle with too much legal & reputational “baggage.”
    • David Latt: “Oh, goodness. Epstein. I think everyone, at least at 1 First street, wants nothing to do with that.” [06:02]
  • Live Nation (Ticketmaster) Antitrust Arbitration:
    • The Court declined a business case involving unconscionable arbitration clauses; raises questions about the current Court’s focus on “culture war” over commercial disputes.
    • David Latt: “Is the court paying too much attention to... culture war issues and not enough to these commercial issues?” [07:16]
  • Missouri’s “We Don’t Do Federal Gun Laws” Challenge:
    • The Court did not take up Missouri’s challenge to federal preemption; notable for the voting breakdown and ongoing tensions between state and federal power.
    • Sarah Isgur: “Missouri certainly wanted this to be an example to the rest of the red states for how to have the most Second Amendment-vibed state in the country and the Supreme Court not dogged that one.” [08:47]

• Notable Grant: Hawaii Private Property Gun Law

  • The Supreme Court takes up a case involving whether Hawaii can presumptively prohibit concealed carry on private property open to the public without affirmative owner permission.
  • Discussion of the “anti-Bruen” approach — does this carve out a gun rights “black hole” given how much property is private, vs. the rights of owners to regulate carry?
    • Sarah Isgur: “Are you surprised they granted another Second Amendment case this term... the argument from Second Amendment folks is... basically, you would never really be able to conceal carry if every single place you’d go into... you wouldn’t be able to private carry unless there’s a posted sign.” [13:30]
    • David Latt: “Here, it really bit off a very discreet question... It didn’t decide to take on the whole, well, let’s just review the entirety of these Hawaii and California laws. It’s taking on this very specific, discrete issue.” [16:44]

• Fifth Amendment Takings Case (Michigan):

  • Case about a $2,000 tax lien resulting in a $74,000 foreclosure with the property later sold at $194,000 — does the former owner get the difference, and does this violate the Excessive Fines Clause?
    • Sarah Isgur: “But screw these people. Like, the facts here are egregious, both leading up to the taking and then after the taking...” [20:02]
    • David Latt: “I think a lot of times in these types of cases, people just look at the facts and they imagine themselves in the shoes of the property holder. And if the vibe is sort of like, wow, you got a raw deal...” [20:45]

2. Sentencing of Nicholas Roski: Judicial Leniency and Public Outrage

[24:09 – 33:47]

• Background:

  • Nicholas Roski, who plotted to assassinate Justice Kavanaugh, arrived at Kavanaugh’s home with weapons but ultimately turned himself in.
  • Judge sentenced Roski to 97 months (8 years), much less than the prosecution’s requested 30 years.

• Controversies in Sentencing:

  • Judge’s rationale:
    1. Roski’s remorse and surrender.
    2. Impact of Trump-era policies on transgender inmates and potential hardship in prison, as Roski now identifies as Sophie.
  • Sarah Isgur: “I gotta say, I find eight years pretty outrageous.” [26:35]
  • David Latt: “I think a lot of people view this sentence as not sufficient... I think there’s a case here that this was not a reasonable sentence.” [26:42]

• Legal Consequences & Appeal Prospects:

  • The appeal standard is “abuse of discretion,” with most sentences left intact unless there is a clear error.
  • The use of gender status as a sentencing factor, and implications for equal treatment, comes under scrutiny.
  • Sarah Isgur: “Prison's pretty hard, man. I wouldn't recommend it. Even so, I don't know. I think this is going to be difficult.” [28:04]

• Political Dynamics and the Judicial Filibuster Theory:

  • Sarah posits that the removal of the filibuster has changed the type of judge who is confirmed, incentivizing more ideologically “shiny” decisions rather than restraint.
  • Sarah Isgur: “My theory goes, some of the behavior you will see from judges who might want a promotion in the future... is you want to stand out for being the most committed to the cause.” [31:02]
  • Issue is further compounded when such high-profile decisions intersect with “culture war” concerns, notably around gender and violence against judges.

3. Justice Alito’s Speech: “Insecure Originalists,” Obergefell, and Judicial Philosophy

[35:57 – 52:20]

• Obergefell & Same-Sex Marriage: Endangered or Not?

  • David Latt: “No, I am not particularly concerned about a possible overruling of Obergefell... In this speech that Justice Alito gave, his quote was, and I'm quoting here, ‘in commenting on Obergefell, I am not suggesting that the decision in that case should be overruled.’” [37:15]
  • Reliance interests in Obergefell (unlike cases like Dobbs or Brown) are enormous, as families and legal arrangements have been built upon it.
  • Sarah Isgur: “The reliance interest is huge on Obergefell, maybe more so than any precedent I can think of currently at the court.” [42:50]

• Inside Baseball: Scalia’s “Paper Bag” Line & Justices’ Personal Dynamics

  • Scalia once apologized to Kennedy for his famous dissent line about hiding “my head in a bag.”
  • David Latt: “He actually came by Justice Kennedy's chambers to apologize for that, and they hugged it out... and sadly, Justice Scalia passed away shortly after...” [42:53]

• Alito’s “Pragmatic Originalism”

  • Alito self-identifies as a “working originalist,” or “common sense originalist,” resisting efforts to have originalism provide answers to every question or underpin every decision.
  • Sarah Isgur: “He would push back on some of these late stage problems with originalism by saying you're trying to have originalism solve too much, to do too much... you may still need to keep going on, but you don't, like, hold onto originalism white knuckled...” [45:02]

• Critique of “Common Good Constitutionalism”

  • Alito is wary both of “living constitutionalism” and the “common good” movement, arguing for boundaries to interpretative methodology.

• Notable Alito Moment:

  • In an oral argument quip (referencing a case about the constitutionality of laws applied to new technology):
    • Justice Alito paraphrased: “What Justice Scalia is trying to ask is, what would James Madison have thought of video games and did he enjoy them?” [47:09]

4. Judicial Methodologies: A Glossary and Debate

[52:20 – 68:36]

• Alito’s Six Pitfalls of Originalism [52:20]

  • 1. Common sense: Avoid obviously insane outcomes.
  • 2. Structural context, not just explicit text.
  • 3. “Icarian” Originalism: Don’t lose sight of contemporary understanding.
  • 4. “Archaeological” Originalism: Don’t over-rely on obscure old cases.
  • 5. Mix with non-originalism for balance.
  • 6. Avoid substituting philosophical theories for actual legislative history.

• Key Judicial Approaches Discussed:

  • Living Constitutionalism: No current justice claims this; associated with past jurists like Earl Warren.
    • David Latt: “I kind of used to joke about this philosophy as... the living, breathing, stairmastering Constitution. I just think that nobody wants to be associated with that...” [55:56]
  • Formalism: Most associated with Justice Barrett, rising among conservative legal scholars and judges.
    • Sarah Isgur: “I feel like formalism is on the rise in legal conservative world, maybe because of Justice Barrett, or maybe she's the symptom ...” [56:42]
  • Originalism: Especially tied to Justice Thomas; variations flourish among other conservatives.
  • Textualism vs Originalism:
    • Sarah Isgur: “Originalism is about... text, history, and tradition. ...Textualism now is like, well, we don't care what their expectations were. The text says what it says.” [60:41]
    • The Bostock case (gender identity & employment discrimination) comes up as a test-case for these distinctions.
  • Legal Realism & Legal Positivism: Admitted as mostly “law professor” theories; not explicit methods on the Court today.
    • David Latt: “Judges are people too. ...priors and prejudices and human factors ... will affect judging.” [65:36]
  • Pragmatism (Breyer-style): Now sometimes described as “pluralism” or “practicalism” — living in the liberal bloc with Justices Kagan, Jackson, and Sotomayor.
    • Sarah Isgur: “Justice Breyer lives for a great standard and a 5 part test. Better if it's a 9 part test.” [66:28]

Notable Quotes & Memorable Moments

• Sarah Isgur on Supreme Court litigation strategy:
  “At this point, you know, I have to wonder... if you have a great case that should be granted cert... your case is going to get granted. These are, you know, the justices are very, very smart, as are their clerks.” [03:56]

• David Latt on Obergefell's fate:
  “No, I am not particularly concerned about a possible overruling of Obergefell… You need five votes. And even if you might have three or … four votes, I don't know that you have five for overruling it.” [37:15]

• Sarah Isgur, on Roski sentencing:
  “I find eight years pretty outrageous.” [26:35]

• Sarah Isgur on judicial ambition post-filibuster:
  “You're not worried about getting votes from the other side. You're worried about your own side sniping you for being insufficiently committed to the cause.” [31:10]

• David Latt, on Alito’s philosophy:
  “I think his argument is that some originalists are trying to make originalism do too much work or solve every problem. And he wants to take a more pragmatic approach ... use original public meaning as a factor ... but not the sort of holistic, all controlling system...” [48:47]

• Sarah Isgur, summarizing Alito’s six pitfalls:
  “Describing Justice Alito as a Burkean originalist I think is going to be the best way to predict your Justice Alito outcomes...” [52:20]

Timestamps for Key Segments

• Long Conference — Grants & Denials: [02:04 – 21:50]
• Roski Sentencing Discussion: [24:09 – 33:47]
• Justice Alito Speech; Obergefell & Originalism: [35:57 – 52:20]
• Judicial Methodologies & Philosophy Glossary: [52:20 – 68:36]

Summary Takeaways

• The Supreme Court’s long conference is increasingly procedural and less eventful, with most notable legal battles deferred for better vehicles or cleaner procedural backgrounds.
• The justices remain highly conscious of public perception and procedural regularity, as seen in their reluctance to take up hot-button or messy cases.
• The tension between legal doctrines—originalism, textualism, formalism, pragmatism—is not just academic but directly impacts major rulings and outcomes, especially on issues like gun rights and LGBTQ+ rights.
• Sarah and David’s discussion foregrounds the human, political, and methodological complexities that define contemporary judging, while never losing sight of what’s at stake in the real world.

This episode is a must-listen for those interested in the inner workings of the Supreme Court, the impact of judicial philosophies, and how legal theory collides with modern controversies and the lives of everyday Americans.