District Map Fights Before the 2026 Midterms

Summary

Advisory Opinions – "District Map Fights Before the 2026 Midterms"

Podcast by The Dispatch | May 29, 2026
Hosts: Sarah Isgur & guest host David Latt (Original Jurisdiction)

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Episode Overview

This episode dives into three main "buckets" of legal news impacting politics and the courts:

1. Breaking updates on redistricting fights—particularly in Alabama and implications for the 2026 midterms.
2. New developments and growing frustration over the so-called "slush fund" lawsuit filed by retired federal judges.
3. Four key Supreme Court decisions, including a surprisingly impactful Federal Arbitration Act case and three criminal law rulings. The show closes with a candid discussion about judicial ethics, prompted by a scandal involving a federal judge in the 11th Circuit.

The episode is fast-moving, witty, and characteristic of the hosts' blend of deep legal critique with pop-culture quickness.

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1. District Map Fights & Voting Rights Act Showdown

[03:14–13:30]

Key Points

• Alabama’s Congressional Maps Struck Down Again:

  • A three-judge panel (with two Trump appointees) ruled that Alabama’s new congressional district maps violate both Section 2 of the Voting Rights Act and the 14th Amendment by diluting the voting power of Black citizens.
  • The panel cited the recent Supreme Court case Calais (regarding Louisiana's maps), holding that Alabama’s attempt to avoid "using race" didn’t save them; intentional vote dilution is still a violation.
  • The panel, anticipating Supreme Court review before the 2026 midterms, carefully addressed the "Purcell Principle" (reluctance to change election rules too close to voting).

• Supreme Court’s Next Move?

  • Isgur: Predicts the Supreme Court will leave the panel’s ruling in place. “I think they're going to have the three-judge panel win the day here. ... I think you're going to see a reverse of the 6:3 in this case.” [12:10]
  • Latt: Takes the opposite view (“weakly”), suggesting the justices might react negatively to the lower court not following hints from their remand. [13:13]

Notable Quote

“If you use race, it’s a racial gerrymander. If you don’t, we will presume it’s a partisan gerrymander, in which case the courts have no role in that ... But we will not, under Section 2, force states to use race to draw their districts.”
—Sarah Isgur [05:25]

Memorable Moment

• Isgur’s riff on the three-judge panel’s tone toward the Supreme Court:

  “There aren’t like sarcastic marks in the English language, but if there were, one wonders whether they might have been used there. ... Maybe just some Supreme Court side eye.” [10:35]

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2. The ‘Slush Fund’ Lawsuit: Judicial Restraint vs. Political Theater

[13:30–24:25]

Key Points

• Overview:

  • A new lawsuit was filed by 35 retired federal judges attempting to reopen "Trump v. IRS."
  • Isgur is incensed, calling it a “press release lawsuit” meant for headlines rather than real legal remedy, describing it as nearly frivolous and accusing the former judges of inappropriately leveraging their title.

• Wider Problem:

  • Both hosts bemoan the trend of using the courts as a stage for political battles that properly belong in Congress or the executive branch, arguing this undermines the role and perceived impartiality of the judiciary.

• On Sanctions & Judicial Ethics:

  • Isgur: “If you’re 35 retired federal judges, you knew this was supposed to be a law review article. ... They filed a motion instead ... that is sanctionable to me.” [21:39]

• Dissent Over State Lawsuits as Political Performance:

  • Reference to Texas’s failed lawsuit challenging the 2020 election results and Florida’s suit over California’s driver license rules—both labeled as performative “press release” cases with no legal basis.

Notable Quotes

“Everyone’s doing it now. Instead of fighting it out in our actual democracy, Congress ... we keep wanting the courts to be part of this reindeer game ... This lawsuit is stupid.”
—Sarah Isgur [13:30]

“Once you’re no longer a judge, you’re just a lawyer or a citizen like everyone else.”
—David Latt [16:05, quoting Oren Kerr]

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3. Supreme Court Decisions Recap

[27:07–54:59]

A. Federal Arbitration Act: Flour Foods v. Brock

[27:07–36:51]

Key Points

• Unanimous Gorsuch Opinion:
  • The case addresses whether drivers who deliver goods only within a state are “engaged in interstate commerce” under the Federal Arbitration Act exemption.
  • The Court says yes—even last-mile drivers are engaged in interstate commerce if they’re moving goods as part of a larger interstate operation.
• Wickard v. Filburn Lives On:
  • Discussion frames the case as a reaffirmation of the broad understanding of the Commerce Clause, echoing Wickard.
• Surprise: Conservative Court, Pro-Employee Decision
  • Noted that the Roberts Court, often “arbitration-friendly,” has increasingly ruled for exceptions to compelled arbitration in favor of employees.

Notable Quotes

“This is basically a Wickard definition of interstate commerce. Unanimously—Justice Thomas, Justice Alito ... It feels Wickerdy to me.”
—Sarah Isgur [29:11]

“She’s so good at answering Justice Gorsuch’s questions about text and history that she should be called the ‘Gorsuch whisperer’.”
—David Latt [35:04, on advocate Jennifer Bennett]

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B. Batson Challenges & Jury Selection

[37:24–44:22]

Key Points

• Case Recap:
  • In a death penalty case, the defense claimed the prosecution struck Black jurors for racial reasons. The Court (5–4, Kavanaugh for the majority with three liberals and Chief Justice; Gorsuch dissenting with Thomas, Alito, Barrett) held the defense was denied a proper chance to challenge the prosecutor’s “race-neutral” explanations, remanding for reconsideration.
• Majority (Practical Approach):
  • Emphasizes fairness and avoidance of “magic words” to preserve appellate rights, especially in capital/race cases.
• Dissent (Procedural Rigor):
  • Argued that the defense had its chance, failed to press, and we shouldn’t rewrite trial records on appeal.

Notable Quotes

“This is a capital case. A man’s life is on the line, and ... possible racial discrimination in jury selection. Just as a practical matter, we’re not going to require you to say any kind of magic words or anything in order to not be sent to death.”
—David Latt [41:20]

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C. First Step Act: Compassionate Release & Sentence Stacking

[44:22–54:59]

Two Cases Discussed:

1. “Extraordinary and Compelling Reasons” & Doubts About Guilt

• Majority (Barrett, 8–1):
  • You can’t use "compassionate release" provisions to challenge your conviction if you merely have doubts about guilt—statute is for new factual changes, not end-runs around habeas.
• Sotomayor/Kagan concurrence:
  • Must show new facts for relief, not just rehash prior trial issues.
• Jackson dissent:
  • Would grant district judges more discretion to address convictions they view as problematic.

2. Stacking Provisions & Retroactivity

• Majority (Barrett, 6–3):
  • First Step Act changes reducing “stacking” (sentencing enhancement) don’t apply retroactively except to those not yet sentenced.
• Sotomayor dissent:
  • Stresses the inequity—men sentenced decades longer for timing, urges individualized review under Sentencing Commission guidelines.

Notable Quotes

“As a policy matter, you can definitely see why the dissent is sympathetic. ... [The defendants] received vastly longer sentences. And these are not capital cases. ... And yet these defendants are getting a near life sentence and a life sentence.”
—David Latt [54:55]

“You have the conservative majority reading the text, and you have the liberal dissenters relying on the United States Sentencing Commission guidance document … The conservatives are always, not always, usually going to say text alone, man, text alone.”
—Sarah Isgur [54:48]

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4. Judicial Scandal: Sex, Lies, and the 11th Circuit

[57:55–73:41]

Key Points

• Federal Judge’s Private Reprimand:

  • An unnamed judge admitted to sexual activity in chambers (within earshot of law clerks), lying to chief judges, and attending a partisan event.
  • Investigative work identifies Judge Eleanor Ross of the Northern District of Georgia; Fani Willis (of Trump/Georgia prosecution fame) plays a supporting role via a party central to the timeline.
  • Judge received only a private reprimand, not a public censure or removal; her conduct and the process draw condemnation.

• Systemic Issues & Call for Reform:

  • Isgur and Latt argue the current system (judges policing their own) is broken, sometimes too harsh, sometimes too lenient (cf. treatment of elderly Circuit Judge Pauline Newman vs. leniency here).
  • Proposal for a standing Article III commission of retired judges to independently investigate and report on ethics violations.
  • Emphasis on need for transparency and public trust.

Notable Quotes

“This judge who seems ... to have admitted to pretty serious conduct ... was able to just kind of go on with her bad self and without even the public shaming, because this was a private reprimand.”
—David Latt [65:09]

“If she can’t tell the truth, why should you have to tell the truth? And it undermines again, the role of the judges, the respect we should have for the courtroom and for judicial officers of the court.”
—Sarah Isgur [72:14]

“It probably would be better to have this body of senior judges that you describe ... who have no ties whatsoever to any particular judge, because right now this is handled intra-circuit.”
—David Latt [70:15]

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Timestamps for Key Segments

• 03:14 — Redistricting recap (Alabama, Louisiana, SCOTUS trends)
• 13:30 — Retired judges’ lawsuit over “slush fund”; court politicization
• 24:25 — Supreme Court decisions segment begins
• 27:07 — Federal Arbitration Act case (Flour Foods v. Brock)
• 37:24 — Batson: Jury strikes, race & procedure
• 44:22 — First Step Act: Compassionate release & sentence stacking
• 57:55 — Judicial ethics scandal in the 11th Circuit; systemic reform discussion

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Episode Tone and Style

The episode is typically brisk, entertaining, and deeply knowledgeable; Sarah Isgur's mix of exasperation and humor (especially when "ranty") is balanced by David Latt’s proceduralist bent. Both voice frustration about the growing misuse of courts for political ends and champion a more traditional, restrained vision of the judiciary.

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Useful for listeners who missed the episode and want an in-depth yet accessible roundup of timely legal controversies and Supreme Court action, with insights on the crosscurrents of law, politics, and institutional integrity.

Transcript

[Sarah Isger]

Ready?

[David Latt]

I was born ready.

[Sarah Isger]

Welcome to Advisory Opinions. I'm Sarah Isger. That's David Latt from original jurisdiction. And we have. Well, I'd say we have three buckets to cover with you all today. Number one, some updates on things in the news. First of all, Alabama's districts not in effect anymore. The three judge panel in Alabama threw them back out for the 2026 midterm election, citing Section 2 of the Voting Rights act and the 14th Amendment. That thing that everyone said was toothless. It's going back to the Supreme Court. Let's see what happens next. And a new lawsuit against the slush fund. Kind of even more meritless than the last one. Then we've got four decisions from the Supreme Court. One on the Federal Arbitration Act. Do not turn off this podcast because you heard faa. This is going to be fun arbitration talk here. And you will all stay for it because the Arbitration act is sexy as hell. And then we have three criminal cases, one on bats and challenges and. And two on the First Step Act. And last, this one, not safe for work. Maybe a judge issued a judicial reprimand for having relations in chambers that her clerks could hear with a law enforcement officer and then lied about it when confronted with the complaint. And is there anyone better to talk to about this than David Latt? I think not. Let's go. Ready to soundtrack your summer with Red Bull Summer All Day Play. You choose a playlist that fits your summer vibe the best. Are you a festival fanatic, a deep end dj, a road dog, or a trail mixer? Just add a song to your chosen playlist and put your summer on track. Red Bull Summer All Day Play. Red Bull gives you wings. Visit RedBull.com BrightSummerAhead to learn more. See you this summer. So good, so good, so good.

[David Latt]

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[Sarah Isger]

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[David Latt]

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[Sarah Isger]

First of all, welcome to the podcast, David Latt.

[David Latt]

Hey, thanks for having me, Sarah.

[Sarah Isger]

And you have had emergency oral surgery this morning.

[David Latt]

Yes. So I apologize to listeners if I sound a little funny or video watchers if half of my face looks frozen. It should have worn off by now, but it hasn't. So a little, little treat for AO listeners.

[Sarah Isger]

Don't they know that Thursdays are Supreme Court hand down days. You can't have emergency oral surgery. That's like that west wing episode where C.J. has a root canal and then Josh has to fill in at the podium and he alienates the entire press corps. Great episode. BT dubs. So for AO listeners, by the way, you will notice that we didn't release an episode on Thursday morning. Why? Because it's supreme hand down time. We are moving our recordings to Thursday afternoon. The Supreme Court releases its decisions for the rest of June on Thursday mornings at 10am so we will read the decisions and record a podcast in the afternoon and you will get it after that. It doesn't make a whole lot of sense to release a podcast on Thursday mornings when we could be getting bombshell. So. D. David Latt, thank you for joining us on our first of the new AO schedule through the end of the term and then we'll go back to our original schedule. Uh, but before we get to the four decisions that the Supreme Court released on Thursday morning, let's do some housekeeping with some other things that are percolating in law world. First of all, the Voting Rights act and partisan gerrymandering and racial gerrymandering and the 2026 midterm elections. Let's just do a very, I mean, very quick recap of where we are. So Donald Trump pressures Texas to redistrict. At first they say no, then they say, fine. So they make these five additional districts for Republicans. And California's like, hold my beer. And so then they do. Both states get sued as racial gerrymanders. And the Supreme Court is like, nah, we're going to let it keep going. So both of those maps stay in place. In the meantime, the Supreme Court decides a case called Calais about Louisiana's districts. Louisiana at first makes one majority, minority district gets sued. No, you must have two. And the court's like, yeah, you have to have two. So then they're like, fine. So they make a second one, then they get sued again. No, you can't have two. You used race to draw that second district. That violates the Voting Rights act and the 14th Amendment. And a court's like, yeah, that was a racial gerrymander. So it goes to the Supreme Court, where Louisiana is being batted about like a mouse between two cats. Two courts telling them that when they draw one district, they violated the law. When they draw two districts, they violated the law. The Supreme Court says, this is why we can't have nice things. No more race in redistricting at all. If you use race, it's a racial gerrymander. If you don't, we will presume that it's a partisan gerrymander, in which case the courts have no role in that. That's a political question. Or Congress can ban partisan gerrymandering, and we're happy to deal with that. But until that day, you will have to show us some evidence that race was used to draw these districts, in which case, Section 2 violation, no problem. But we will not, under Section 2 force states to use race to draw their districts. Then Alabama is like, cool, cool. Remember when we were up here just two years ago and you wouldn't let us use the maps that we wanted, even though we swore that we didn't use race. And you were like, you have to use race. And then you sent us back down and then a three judge panel was like, you need to redraw your districts. And we were like, no, we don't. And so we didn't use race. And then that three judge panel said that we not only violated section two, but now we violated the 14th amendment's equal protection clause. And then it went back to the Supreme Court. And if you all remember, last week, The Supreme Court GVR'd it in light of Calais, sent it back to that panel and it was like, look, let's redo this. This was six, three. Everyone was very upset about it. Again, David French and I talked about how their 14th Amendment claim could very well still survive except that it was based on their section two claim. And because now the section two claim is basically done after Calais, if the 14th amendment claims needs the section two claim, we see why they sent it back to the three judge panel to resolve it. So that's where we are, folks. It was sent back to that three judge panel and we have the results from that court. I will now read from the opinion. Alabama charges that Calais upends our finding of intentional discrimination because it is fully derivative of our section two finding. But that charge is wrong. And in any event, after again reviewing the extensive evidence regarding plaintiffs section two claims, we find that the plaintiffs have likely established their Section 2 claims when measured against the Calais standard. What does this mean? Alabama does not get its map that it wanted. They have appealed this to the Supreme Court. Interim dockets all the way down. So. So we are waiting for the Supreme Court to rule on this. But David Latt, this is pretty interesting, right? You have two Trump appointees on this three judge panel and they are saying not only did you violate the 14th amendment with vote dilution by splitting up the black belt of Alabama, which is both black because of its soil and its agriculture, and black also because that is where a huge chunk of the black population lives. So they're saying you violated the equal protection clause because you intentionally diluted voters by putting them in districts to dilute their votes. That's a 14th Amendment violation. And also even under Calais, we think you violated Section two and you did use race to draw these districts. So yes, it is a Section 2 violation and a 14th Amendment violation. And you must draw a different map. What do you think the Supreme Court's going to do?

[David Latt]

I don't know actually. And I believe the state asked for a fairly prompt ruling by I think Monday morning. But instead Justice Thomas has requested a response which I think is due Monday afternoon. So it will take a few days for this to play out. I was surprised by the speed with which the three judge panel turned this around, but presumably they saw this coming from a mile away and started working on this already. And my sort of realpolitik take on this is, I think basically to the extent that people are upset over this, the three judge panel wants the Supreme Court majority to own it. It's sort of like, okay, we're sticking by our guns here and if you want to introduce this confusion or uncertainty into a fast approaching election, you be the ones to do it. We're not going to do your dirty work for you. And it's interesting, maybe they took a hint from the dissent because when the court granted, vacated and remanded, the liberals filed a dissent saying nothing in our opinion prevents the three judge panel from basically saying we meant what we said, that there is a 14th amendment violation here. And the three judge panel said yeah, what she said. So here we are.

[Sarah Isger]

They also had this interesting paragraph I thought on Purcell. This is the idea that federal courts shouldn't interfere in state rules for elections too close to an election. I'll, I'll read again from this three judge panel. The Supreme Court clearly understood two weeks ago that Alabama's 2026 primaries were underway by expediting its proceedings and issuing judgment forthwith. We understand that the court expected us to give these cases further consideration in connection with the 2026 election. If the court did not mean for us to conduct our work expeditiously, we trust that it would have said so, not expedited its proceedings, issued judgment in the ordinary course and or stayed our injunction. David, there aren't like sarcastic marks in the English language, but if there were, one wonders whether they might have been used there. I mean, sarcasm isn't even quite the right word. Maybe just some Supreme Court side eye. They did issue this opinion earlier than some might have expected. This wasn't on the last day of the term. For instance, I'm talking about Calais here. Then they got to Alabama real quick, said that back down in the middle of a primary. And here you have the three judge panel. Oh, and don't forget, they issued the mandate faster because Alabama, you know, asked them to. Sorry. In Calais, because Louisiana asked them to. So you have this three judge panel being like, there can't be a Purcell problem because then what was the Supreme Court doing this whole time? Now, like I said, I think that the Supreme Court's merits docket is not Purcell related. I think that involves sort of these interim decisions and lower court decisions that are brought in to affect an election in short order to the election. The Supreme Court had Calais for nearly two years. It has to issue it at some time. And we have midterm elections every two years. So what are you going to do? Nevertheless, that paragraph feels to me like pretty persuasive as to why they got this out really quickly. Alabama can't use its map. I could see this going either way. So this is a weak prediction, David Latt. But I kind of think the Supreme Court's going to let this go. I think they're going to have the three judge panel win the day here. They gvard it for a reason. I think they genuinely were willing to have the three judge panel decide this for the 2026 election and that this is going to stay with some dissents. But I think you're going to see a reverse of the 6:3 in this case. We shall see.

[David Latt]

I'll take the opposite side of that weekly. I think that the GVR meant something and this could be like a couple of cases we've seen on the interim docket where the justices basically say with irritation, you didn't take our hint. So I'll take the other side of that, but very weakly.

[Sarah Isger]

Okay, uh, the other update that I thought people might want, I have had a lot of feelings and emotions about the slush fund. And we have another lawsuit filed about the slush fund that is also a press release. Nonsense lawsuit. And I'm getting really mad about it. Uh, this was a motion filed by 35 retired federal judges asking the district judge to reopen Trump versus the irs. The case that settled that created the settlement of which created the slush fund. The 35 retired judges are like, well, sometimes there's exceptions to non party motions never really gets into like even if we accepted your motion, to what end? They're basically like this subverts the rule of law to have this settlement because it was never a case which sort of looked like how you were going to rule because these parties weren't adverse to one another. David Latt I'm getting more and more angry about dragging the courts into political fights because we don't believe Congress will do its job and we don't believe the President will do his job. Elect good people to the White House and if you lose, you, you've lost. And elect people to Congress who will do their jobs. And if you won't, you don't get to then run into court and pull the court into politics, into culture war fights, into an election cycle over and over again like it's the same as the other two branches, the courts. You know, Yuval Levin makes this point that Congress is supposed to be looking into the future, right? It's supposed to pass legislation for future issues that Americans have the presidency. Article two is supposed to be the present, execute the laws now, do foreign policy now, conduct the war now. And the courts are supposed to be passed backward, looking slow, deliberative. Let's figure out what happened and let's right the wrongs that already occurred. We're not accepting that. And so we keep wanting the courts to be part of this reindeer game that we're playing where everything is now. Nothing is future, nothing is past. This lawsuit is stupid. MMB embarrassed of the 35 judges who signed this, who thought that it was an appropriate use of their title as judges to sign this motion. Frankly, I think that is very close to, if not a clear violation of the judicial ethics code and the use of title of your office.

[David Latt]

So you're not alone in these views. I think. A friend of the pod, Oren Kerr, posted on X or Twitter that once you're no longer a judge, as in once you've stepped down from judicial service, you're just a lawyer or a citizen like everyone else. So I, I do think that we have in this past year plus seen a number of former judges speaking out over what they view as Trump's incursions on the rule of law. Look, these judges are smart people. Two of the people who are leading this charge are former 4th Circuit Judge Michael Ludig and former, former District of Massachusetts Judge Nancy Gertner. They know this is a long shot. They're, they're very, very smart people. I think that what they would probably argue if you were having them over drinks or something not in a court filing, I think they would say, look, we know this is a very, very long shot, but we believe it is very important for us to emphasize how repugnant this deal is to, to all sorts of principles in terms of just the functioning of democracy and rule of law and possibly separation of powers. And so I think the argument here is this is not just intended for the court, it's intended for the court of public opinion.

[Sarah Isger]

And that's the problem. You are welcome to write a law review article as a retired judge. You are welcome to issue a press release as a retired judge. What you are not welcome to do is file a meritless, near frivolous motion in a court and then make the court rule on that, and then be very upset when the court doesn't rule your way. And I just. Everyone's doing it now. It's like the cool thing to do instead of fighting it out. In our actual democracy, Congress is the closest to the people. That's where we're supposed to have our culture war fights. And this isn't the same in a whole lot of respects, but same vibe. You know, Florida sued California over commercial driver's licenses and that California was issuing commercial driver's licenses to illegal aliens. That is not a court fight. Once again, that is what your congressional representatives are for. That is what your governors are for, to get on the phone with each other. That is even maybe what you call the president about so that he can convene the two governors at the White House. I'll accept that, too. But it is not a lawsuit to file. But it gets to this real problem we have of understanding what the three branches of government do. That, I mean, as you say, David, I totally agree that that's what this is for, to, you know, really lodge their complaint on what Trump is doing to the rule of law. That's not what a motion before a court is to do. We have ways to do that. And I think it is. I think they are undermining the rule of law by doing it because it furthers this misunderstanding of what courts are for. Again, past backward looking, long counter majoritarian. Second, I think it further pulls judges into this partisan fight in this sort of post filibuster forum shopping world in which people will see judges as partisan actors. Why? Well, 35 of them just filed a motion that had no legal basis against Donald Trump because they didn't like the settlement. And instead of calling their congressman, they used their title as a retired judge to do this or. Well, what do you think they were like on the bench? You think that they only found this new, you know, extra legal arm after they retired? No, they were probably having those same feelings on the bench. And this is why, you know, all of this should be avoided. The forum shopping, the only confirming judges with one party and retired judges doing this nonsense undermines their colleagues that are still on the bench. And, and I have had so many rants in the last two weeks on this podcast, it feels very uncharacteristic for me. And I, I really think it's events. It's not that I am changing, but I am feeling ranty.

[David Latt]

I think one could argue, look, this is part of the democratic process. This is the First Amendment at work. We're seeking redress for grievances. We're trying to enter the noisy political forum and make ourselves heard about why this deal is so disgusting. But I see your point about how you don't need to bring the courts into that. You can do an op ed, you can do a law review article. But look, they're smart. They realize that a motion in a court by former judges is going to get a lot more attention. This was written up in the New York Times and everywhere else. If you write a law review article, that's like the tree falling in the forest with nobody around to hear it.

[Sarah Isger]

So you know, but that's exactly it. The media is to blame here too. The officers who filed their lawsuit that was also meritless and will get dismissed nearly immediately also got breaking news push alerts from these media outlets and there's not going to be any push alert when it gets dismissed or if it is, it will blame the court. Oh, this Trump friendly court is dismissing the lawsuit. Instead of this lawsuit was a press release lawsuit that the intention was to get it dismissed. And then nobody cares because you know, these judges are life tenured. Who cares if their approval rating goes down? And in the meantime, nobody's blaming the President, nobody's blaming Congress because we as voters now see the courts as our last chance. And it never, never, never was meant to be the last word in anything. Voters have the last word of the United States of America.

[David Latt]

So would you rule 11 this Judge Isger?

[Sarah Isger]

I actually would because they, it's funny, like I'm mad because they use their titles to do this, but because they use their titles, I would file for sanctions and if no one filed, I don't even know who the adverse party would be here to file for sanctions. I think as a judge I would probably sue A sponte ask for a for cause hearing. Sorry, show cause hearing. Why they shouldn't be sanctioned. In the end, I probably wouldn't sanction them, but I think the, the show cause hearing might be enough to dissuade this. I would not do that for the January 6th officers. For what that's worth, that is a different set of plaintiffs. I would, you know, give them the benefit of the doubt that they maybe thought, I don't know, that we didn't have standing laws anymore. But if you're 35 retired federal judges, you knew this was supposed to be a law review article. But you're right, David. They didn't think that would get enough attention, and they filed a motion instead of writing a law review article that is sanctionable to me. What do you think?

[David Latt]

I think I'm with you in not imposing sanctions. In the end. I am pretty conservative on things like that. But what I think might make sense about your proposal to at least raise the issue is we have to give some pushback on this, otherwise there's no incentive not to do it.

[Sarah Isger]

Why would anyone write a law review article? Again, everything should be a motion. Yeah, this case has been dismissed. They are filing a motion to reopen a case like it's not even a real thing. They are a non party filing a motion to reopen a case that no longer exists, that is sanctionable, that is so clearly meant to be a law review article. But they just thought this would be a better way to get headlines.

[David Latt]

Now we'll see. It'll be interesting to see whether judges start pushing back, because there are a lot of these performative press release lawsuits on both sides of the aisle. When Texas tried to challenge Trump's 2020 election loss by suing Pennsylvania, and the Supreme Court basically gave that the back of the hand that was clearly meant to. To, you know, appeal to the base.

[Sarah Isger]

And they did the same thing with this Florida lawsuit against California. In fact, it was the exact same outcome. They dismissed it even though it had original jurisdiction. And so once again, you saw a dissent from Alito and Thomas, not on the merits, but on the fact that the Constitution says that they shall hear cases brought by one state against another. And the rest of the justices are like, I think that means maybe I'm

[David Latt]

with them on that. For the record, even if the disposition is summary affirmance or, you know, vacate vacator or reversal, it just seems very plain to me. And I say that not just because my substack newsletter is called original jurisdiction, but that just seems the most sensible way to read those words.

[Sarah Isger]

Also a little hard to be an originalist or a textualist, especially a textualist, if you're going to read shall to me may in a clear part of the Constitution. And one of the few words, I think I counted 369 words in Article 3. And you're willing to ignore one of them? Are you a textualist then? I get that it would be inconvenient, but how hard is it to assign a special master? You know, it basically just becomes a regular case. They the special master is treated as a trial court judge of sorts. Yes, it wastes judicial resources. And to your point, David, it incentivizes further nonsense lawsuits by states suing other states that really are meant to be press releases when they refuse to work through their congressional representatives or, you know, complain to the president. Nevertheless, this is like the one thing where the Constitution looks pretty clear and Alito and Thomas I think look kind of righteous in their crankiness. In the meantime, California and Arizona, California versus Arizona and Arizona versus California. I counted this in my book in a footnote or something, but it's like 20. There's been 20 original lawsuits arguing over water between California and Arizona. So I think we're due for one of those any day now. All right, when we get back, we've got four Supreme Court decisions that came out Thursday morning, three criminal and one you guys, hold on. It's the Federal Arbitration act, the sexiest of the Supreme Court decisions. There's the faa. Cases are coming hot and fast these days. David Latt and I think this one actually I think it's going to warrant some real AO time. So when we get back, we're going to tell you why the Federal Arbitration act is sexier than you think it is.

[David Latt]

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[Sarah Isger]

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[David Latt]

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[Sarah Isger]

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[David Latt]

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[Sarah Isger]

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[David Latt]

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[Sarah Isger]

Canva, the thing that makes anything a thing. All right, David Latt, I mean, this not only is a Federal Arbitration act case, it's a unanimous decision written by Justice Gorsuch. And yet you and I are both going to argue that this is the most interesting case potentially of the four Thursday hand downs. So I will read you now from Justice Gorsuch's majority opinion. The Federal Arbitration act requires courts to enforce many private arbitration agreements, but not all. Section 1 of the act provides that nothing in the law shall be used to compel arbitration in disputes involving the contracts of employment of any class of workers engaged in interstate commerce. This case is the latest in a line posing questions about the scope of that exemption. And in this case, David, it's about what is interstate commerce. And it sounds very Wickard v. Filburn to me. So this is a large, you know, national bakery company. They make such things as the Jumbo honey buns. That's right. It's Flour Foods, Inc. And they were sued by one of their distributors, Angelo Brock. But there's an arbitration clause in their contract to be a distributor. And the question is Angelo just moves those honey buns, you know, from Denver to other Colorado locations where people need honey buns. So it's not interstate commerce. Sort of like growing wheat on your own farm to feed your own animals instead of buying wheat from, you know, other places that would be engaged in interstate commerce. And what did the Supreme Court say here? Unanimous decision saying that, yeah, that is interstate commerce if you're moving honey buns around the state of Colorado for this national interstate commerce engaged company. And that's sort of interesting, David. Right. Like this is basically a Wickard definition of interstate commerce. Unanimously joined Justice Thomas, Justice Alito. It's written by Justice Gorsuch. And yes, I get like Wickard, I don't think is cited one time in any of this, but who cares? This feels wickerdy to me.

[David Latt]

Oh, absolutely. So it's interesting, in his opinion, Justice Gorsuch says that, look this, the provision at issue here from the Federal Arbitration act is not co extensive, doesn't map on exactly to the Commerce Clause. But then he says, look, at the same time, we can't ignore the fact that we have a robust body of Commerce Clause jurisprudence that defines commerce pretty broadly. So you can see how they get here. And one thing I would point out here is this Case colloquially was known in the media as the case about the last mile drivers. So the classic example is you order some good off of say Amazon and it's coming from another state, and maybe it was manufactured in one state and it was warehoused in a second state and then it traveled through multiple states to get to you. But during this journey, it's not just one driver, it's a succession of truck drivers. And so the idea here is there is a so called last mile driver who takes it from your local Amazon warehouse to your house. And maybe that's a journey of only a mile and it's completely within the state. Are we going to say that that person, simply because their little segment of the trip was intra state, is not involved in or engaged in commerce? Because those are the words of the statute, engaged in commerce. I think we would clearly say that Amazon drivers were, whether they cross state lines or they don't cross state lines, are engaged in interstate commerce. That's basically what Amazon is. It's a giant engine of interstate commerce. So I think that is, I see how they get here. The other side was trying to argue for something of a more bright line rule where they were trying to say, well, the individual can't qualify for this exemption unless the individual worker crosses state lines or they interact with vehicles that cross state lines. And look, I love myself some bright line rules, but that wasn't consistent with the jurisprudence. The court had previously rejected attempts to cabin this provision of the Federal Arbitration act in that way.

[Sarah Isger]

So I mean, there's two things here then that should surprise people. One. Well, David, let me take a little detour here. I was raised in the conservative legal judicial philosophy that if there is one fixed star in our constellation of the Federalist Society, it is that Wickard is wrong, that that enlarged the role of Congress because then everything was interstate commerce and everything could be justified as interstate commerce. And that, you know, growing wheat on your own farm to feed your own animals was not interstate commerce. The argument in Wickard was that he would have otherwise had to engage in interstate commerce. So not engaging in interstate commerce was an act of interstate commerce. I mean, David, this decision, as you say, feels really obvious and it's unanimous. Does this kind of prove that Wickard was right?

[David Latt]

A lot of those cases that have tried to limit the court's commerce clause power, they feel a lot like this ticket good for one ride only cases because the general weight of the authority cuts the other way. So we had Lopez, which was about the gun free school zones act, if you regulate or criminalize possession of guns at a school, and that school is obviously within a single state, does that go to interstate commerce? And I think the court there said no. There was a case over the Violence Against Women act, also a Commerce Clause challenge. And of course, don't forget the Affordable Care act slash Obamacare case was a Commerce Clause case. And there actually were five votes for saying that the individual mandate was not defensible resting on Commerce Clause authority. And remember, the chief cast that deciding vote based on a tax analysis. So there are these cases. But I think you're right that as a practical matter, the cases limiting the Commerce Clause power don't really seem to have legs in the real world.

[Sarah Isger]

I mean, when you had Justice Scalia citing Wickard in the Raish case about growing marijuana at your own house citing Wickard approvingly, this guy who had sort of been the OG godfather of railing against Wickard, I felt like the project was done. Wickard was here to stay. The second surprising thing about this, David Latt, is the arbitration part. This Supreme Court has generally been known to be very arbitration friendly, which is considered business friendly. But we've had a whole string of cases expanding the exceptions to the Federal Arbitration Act. And here's the latest one. I mean, Justice Gorsuch says this is the fourth in a line of cases where we are doing this. Isn't that surprising for a court that's supposed to be conservative, pro business, et cetera, et cetera. It's like, you know, if you're just sort of thinking Reagan Republican Party, Reagan Republicans love arbitration clauses. And yet the Roberts court expanding and expanding and invalidating and invalidating lots of arbitration clauses. What's up with that?

[David Latt]

I would give some credit and a shout out here to a former podcast guest of mine, a very talented advocate named Jennifer Bennett of the Gupta Wessler firm. So fun fact, she is now 50 before the Supreme Court. She argued a number of those other arbitration cases you mentioned. And each of her five victories, including today's, has been unanimous. And she and her firm, Gupta Wessler, they always argue on behalf of plaintiffs and so called underdogs or little guys and gals or the employee in an arbitration situation that's going up against giant, well heeled multinational corporation employer, and she has won these cases again and again. And when I interviewed her on my podcast and I said, wow, you have a striking record of success arguing for political plaintiffs and little people. So to speak up against, you know, giant companies before a conservative generally pro Business Supreme Court. She said, look, when I argue these cases, I focus on the text and the history. And even though she herself politically, in terms of her policy positions, is pretty left of center, she knows how to argue before this court. Her former boss, Judge Chabharya, friend of the podcast, joked that when you listen to her oral arguments, she's so good at answering Justice Gorsuch's questions about text and history that she should be called the Gorsuch whisperer. It's interesting, I think, that this court, contrary to some caricatures of it, and you talk a lot about this in your book Last Branch Standing, it's not just a court that's trying to reach particular right wing policy outcomes. It will reach the so called liberal or progressive or left of center outcome if that's what it feels or what the majority feels is required by the text and by the history. And we may get to this in some of the other cases.

[Sarah Isger]

Indeed. And this does feel like a Justice Gorsuch case, right? Like little guy versus big guy, you know, bully versus, you know, bullied. So to be the Gorsuch whisperer right now is a good job to have, I think, because if you get that and you get how, what he wants and where his vote is and why his vote is, well, you're getting some unanimous decisions from the court. Congratulations.

[David Latt]

Fun fact here. Also, in terms of watching Gorsuch opinion, this all involves his home state of Colorado or Colorado. Colorado. Colorado.

[Sarah Isger]

Do you think he likes a honey bun? I love honey buns, by the way. I mean, I don't think I can eat them anymore. I think the sugar would send me flying out the window. But I mean, in junior high, honey bun and a Diet Coke. Can you believe my parents would just give me like 75 cents and be like, I don't know, vending machine, do whatever.

[David Latt]

Yeah, he's a little too svelte to be consuming too many honey buns, but

[Sarah Isger]

I think that's probably right. All right, we've got three criminal cases. Let's start with the best Batson case. This was on striking jurors because of or not because of their race in a death penalty case. Our most divided case of the day, David latt. This was 5, 4. So Kavanaugh wrote the opinion with the chief, Sotomayor, Kagan and Jackson. And then the dissent, Gorsuch with Thomas, Alito and Barrett. So this is a little in the weeds, but I think it's worth just a hot second because Batson comes up pretty often here. In this case, a man Is convicted for a robbery of a grocery store, and the owner ends up dead. At the jury selection stage, the prosecutor uses his peremptory strikes against four of the five potential black jurors. And in a county that is 60% white and 40% black. So the final jury only has one black juror, and they are going to sentence him to death. At the jury selection stage, when the prosecutor strikes the four black jurors, the defense attorney objects and says, you know, this is a batson violation. This county is 40% black. And he's striking all the black jurors, and he makes the statistical argument. The prosecutor says, I struck the first one because that person returned 15 minutes late to court. The other two had brothers convicted of violent offenses. And the fourth one, like, the defendant is young, unmarried, and a father. And the judge is like, great, those are race neutral reasons. We're moving on. Now. Here's where the. The difference between the majority and the dissent are going to come in. At that point, the defense stops talking, but later on is like, hey, I want to raise my batson problems again. And the judge is like, you have put, you know, your objection is noted. You've got that in the record. But I've decided, and we're moving on. Here's the problem. Under batson, the defense objects. The prosecution has to give race neutral reasons, and then step three, the defense has an opportunity to show why those race neutral reasons were pretextual. Now the majority is going to hold that you never got to step three. The defense needed the opportunity to do that. Therefore, you get to go again. That is the holding in this case. But the dissent is like, yeah, but you were only raising statistical issues, and you never raised the fact that some of the white jurors had brothers who had been convicted of violent felonies or were young unmarried fathers. As in, you know, if you're keeping the white jurors for the same problem that you struck the black jurors, that would very much show that they were pretextual reasons to strike the black jurors. But the dissent's like, but you only were making statistical arguments. You did have the opportunity to do step three. You just didn't do it. And this wasn't a wallflower defense attorney. The defense attorneys, you know, interrupting, objecting all the time. And so this is just, like, not real. If you actually look at the record and trust the trial at, you know, judge. But the majority is like, nope, we're doing step three. You just always have to say, okay, would you like to argue that those were pretextual reasons and allow the defense attorney to do that. David Latt, again, this is the, you know, quote, unquote liberal result from a conservative court. It's also five, four, kind of scrambling the the justices around a little bit. And again, it's a race issue case. Curious if you had any sort of big picture thoughts that jumped out at you on this one.

[David Latt]

Yeah, so a couple first, and we've talked about this before on the show, it's interesting to see another Kavanaugh v. Gorsuch face off. Jurisprudentially, they are within the conservative side of the court, the two of the justices who disagree the most. And one thing that, again, we've talked about is Justice Kavanaugh tends to be a little more practical and consequentialist and Justice Gorsuch tends to be perhaps a little more abstract and theory focused. And here I think what the majority opinion is saying is, look, this is first of this is a capital case. A man's life is on the line, and this is involving possible racial discrimination in jury selection. So just as a practical matter, we're not going to require you to say any kind of magic words or anything in order to not be sent to death. Like, I think that is essentially what's going on here. And look, it is possible, and the dissent hints at this at the end, that this is a case of, you know, what is it like hard facts make bad law or something like that. I think that you could argue, look, they're deciding this case in the way they do, perhaps because it is a capital case involving racial discrimination. But we in general should not be so loosey goosey when it comes to requiring litigants to preserve their arguments in the trial court if they want to raise those arguments on appeal. And so I think again, the dissent points out that, look, the majority doesn't expel out explicitly what needs to happen in order for an argument here to be preserved and kind of hints that maybe this is a fairly unique case. So I think that is definitely an interesting aspect of this, how much of this outcome might have been driven by the particular facts. But look, I am sympathetic here to the defense attorney because what happened was the judge was moving through things pretty briskly. But the defense attorney did reiterate at the end of jury selection, but before they started the actual trial property. I just want to sort of, you know, reiterate my Batson objection. And the judge is like, dooley Nolan, you got it. I heard you. And so just in the practical matter, like when you're a litigant, when you're a trial lawyer before a judge, you don't want to annoy or tick off the judge. And if the judge is sending a signal, hey, let's move on. You don't want to be like, well, let me actually go now to my argument about, you know, whether or not the comparable white jurors were excused at the same rate. Like, it's kind of like, yeah, yes, yeah, right.

[Sarah Isger]

You only heard my statistical objection, but now I need to make every other potential objection so that I can preserve it for appeal. Because just saying Batson, as it turns out, won't be enough. It has to be a specific type of Batson challenge. I agree with you.

[David Latt]

And I think it's just holding the defense lawyer to too high a standard to say, look, the judge already said on the record something like, your Batson argument is preserved. Like, what more do you want? So I probably, I see the good arguments on both sides. I probably lean a little more towards the majority here. But again, maybe my own judgment is being colored by the fact that this is a Batson case and a death penalty case.

[Sarah Isger]

I'm with the majority because I. For exactly the reason you said, once the judge says your objection is preserved, I shut up and I sit down because the judge wants to move on. And I can't keep talking to be like, well, actually, I have to preserve this specific type of the, you know, you're wrong judge about the law. Nope, nope, nope, nope, nope. Okay, well, we have two more to go. Both are on the First Step Acts, quote, extraordinary and compelling reasons language that allows a judge to shorten a prisoner's sentence. So the First Step act was a Trump first term law that was passed. And again, it says that district courts can shorten prison sentences for, quote, extraordinary and compelling reasons. For example, maybe a petitioner's age or they're dying of cancer. That's where we've seen this come into effect. But we've got two cases here. The first one is going to be 8:1. They're both written by Justice Barrett, by the way. But here's the 8:1 case, and it's about whether doubts about a conviction's validity also qualify as extraordinary and compelling reasons for relief. 8:1. The court says no. Kagan and Sotomayor have a concurrence here. Speaking of bad facts make bad law, David, that is, in fact the exact phrase that Justice Sotomayor writes in her concurrence that Justice Kagan joined, in which they just argue that it has to be new facts that you've learned since the sentence. And that is the only thing that can be an extraordinary or compelling reason. So you, you know, their age has changed, their cancer diagnosis has changed, but you knew about the problems with the credibility of the witness during the trial. That's not new information and therefore it can't be an extraordinary or compelling reason. I very much am with the concurrence on this, like sign my name on to the Sotomayor Kagan concurrence. You then have a Justice Jackson dissent. I mean, boy, David Latt, we sure are seeing quite a bit of Justice Jackson breaking off these days in which she basically defends that, yeah, a question about the validity of a sentence should be up to the discretion of a district judge to potentially years, years later say, you know what, I'm looking back at this and I don't know if that witness was credible or not. And therefore I'm going to use my discretion under the First Step act in this language to reduce the sentence. So that's this 8:1 case. Thoughts feelings.

[David Latt]

So I think one key building block for the majority's argument is, look, if you want to challenge the validity of your conviction or sentence, we have a statute for that and it's the habeas statute, which is of course the federal law that as laid out in the Constitution allows you to challenge the legality of your being held in custody. So they essentially said, look, and I'm kind of roughly summarizing the opinion for the court of Justice Barrett. Look, you can't let the we can't let the First Step act allow you to make an end run around the habeas statute. Because one thing about the federal habeas statute is it has a lot of requirements. It's very hard to satisfy. It's like the proverbial camel through the eye of the needle. That's 28 USC 2255. That's the habeas statute. And they're essentially saying, look, what would be the point of a habeas statute, including one that Congress did its job on and tightened up because it felt that habeas was being granted too liberally? What would be the point of that tightened up, requirement filled habeas statute if you could just, you know, come along la di da through compassionate release under this statute? It's 18 USC 3582. So I see the majority's argument. I think that it makes a lot of sense on paper. Now, the argument of the dissent and also the argument of the petitioner here. There are a couple of arguments, but one of them is, look, there are some differences. So for example, habeas, if you prevail on actually erases your conviction and the collateral consequences of being convicted and all of that. Whereas if you get compassionate release under the First Step act, it just ends your prison sentence early, but you are still a convicted felon with all of the burdens of being a convicted felon. So I see that argument there, but it may be a bit of a slender read.

[Sarah Isger]

Nope. I'm Justice Sotomayor all the way on this one. You may not have to do habeas, but you definitely have to show new facts. And I think that solves the habeas problem too. Okay. But next First Step act, this one is going to be 6:3. And it is about again the extraordinary and compelling reasons part of the First Step act for shortening a sentence by a district judge. In this case, it's about the stacking provisions. So these guys got sentenced to a really long time in jail, but if they were sentenced under the First Step act now, they would be sentenced to a still really long but not quite as long amount of time in jail. And are those extraordinary and compelling reasons here? I'm with the majority, no. The law is very clear that it is not retroactive unless you have not been sentenced. So it's okay if you've been convicted. If you haven't been sentenced yet, we are going to apply these sentencing rules. But once you've been sentenced, we're not doing retroactivity. Yeah, unfortunately. I mean, I don't love the stacking rules and I think the First Step act is good that if you're a first time offender, we're not going to stack a bunch of things to run concurrent sentences. But this is why we have Congress. This is why we have laws. Yeah. What do you think, David?

[David Latt]

Yeah. So the First Step acted a bunch of things in terms of criminal justice reform. One of them was allowing for this compassionate release process. Another was getting rid of the stacking provisions which previously required certain sentences to run consecutively, which makes things way longer. If you're convicted of multiple offenses, can you is your time in prison basically running the clock on both of those sentences or do they have to be served one after the other? So let me just in terms of the practical consequences in this case, and I'll just read this little excerpt from the dissent, the dissent here by Justice Sotomayor again for the three liberals, had the amendments been in effect when Rutherford was sentenced, he would have faced a 14 year mandatory minimum, less than half of the 32 year mandatory minimum he received. Carter, the other defendant would have been subject to a 21 year mandatory minimum, 36 years shorter than the 57 year mandatory minimum he received. So look, in the practical sort of on the ground realm, these cases have huge implications for the lives of these defendants. One of them committed this crime when he was 25 years old. Now he's going away for decades. Another committed his crime at 29. And so getting a 70 year sentence, which is sort of his total sentence, is basically a life sentence.

[Sarah Isger]

You know, for a federal. Former federal prosecutor David Latt, you're sure sounding like a softie.

[David Latt]

You know, it's interesting, I'll mention another book besides Last Branch Standing. There's a federal judge, Fred Block, who, who actually has a book all about the First Step Act. For anyone who is intrigued by this statute. It's called A Second Chance. A federal judge decides who deserves it. And it's very interesting because he marches through a bunch of applications he got for compassionate release, lays out the facts and arguments and kind of tells the reader what would you decide? And then he reveals what he actually decided in these cases. And you know, he tends to be a pretty lenient sentence her. But look, I, as a matter of just the analysis though, I actually am pretty sympathetic to the majority here because here's the thing. Congress made these changes in the First Step act, but it explicitly provided that the changes to the stacking provisions would apply only to defendants who had not yet been sentenced to. So Congress basically said this is not going to be retroactive. So again, it's a little bit like what we saw in Fernandez the other case. Can you make an end run around something that Congress provided by invoking more general language in the First Step Act? And I think again, Justice Barrett and the majority are saying, no, you can't. Because look, the rules here can be a little confusing, but in general there are different points where you could consider the sentence. What law is in effect at the time you committed the offense? What law is in effect at the time you are sentenced, and what law is in effect at the time that you make your application for compassionate release? And in general, the rule is what the law that applies is the law that applies at the time of the commission of the fence. Congress changed the rule in the First Step act with respect to stacking and said actually our new more lenient rules are, are going to apply to anyone who has not been sentenced. So that was a conscious choice on the part of Congress. So to then come along and say, actually, you actually can get the benefit of this, even though you had been sentenced, that does kind of seemingly defeat the point of what Congress did.

[Sarah Isger]

Yeah. And the reason that I think it's 6:3 along these ideological lines is you have the conservative majority reading the text, and you have the liberal dissenters relying on the United States Sentencing Commission guidance document. So it, you know, it's not exactly the fight between legislative history and not, but kind of sort of is. And this idea that, like, well, look, the text is the text, and that's great, but if we have this guidance document from an agency, you know, we can rely on that. And that's an important part of this legislative liquidation, I guess you could call it. And that's where I think you see the ideological break between the six and the three occurring here. But it is otherwise, I would argue, not really an ideological case that we would generally think of as being a 6, 3 right versus left, you know, red shirt versus blue shirt case. But again, it goes to, like, what do you rely on when it comes to, as I say, liquidating congressional intent, congressional purpose? And the conservatives are always, not always usually going to say text alone, man, text alone.

[David Latt]

Well, in defense of the dissenters, they hang their hat on text, too. It's just different text because they would say. They would say, look, Congress created the Sentencing Commission. And this is just from Justice Sotomayor's dissent. The first word on her dissent is Congress. Congress directed the U.S. sentencing Commission, not this court, to define what constitutes extraordinary and compelling reasons for incarcerated individuals to receive a sentence reduction under the compassionate release statute. And as you mentioned, the Sentencing Commission did come up with a rule that is not totally, oh, everybody, it's not like Oprah. You get a car and you get a car. Not. Not everybody gets the benefits of the more lenient stacking rules. But if you have certain qualifying factors, you've served a certain amount of your sentence, you've been a good prisoner, et cetera, then you do get the benefit. And what the dissenters are saying is, look, Congress created this Sentencing Commission for a reason. It's not just there. Oh, sorry. It's not just, you know, there for kicks. And so we have to give effect to that statutory language. And there's another textual language of the dissent, too. What they're arguing is, look, when Congress decided not to make this retroactive unless you hadn't been sentenced, they were just saying that it doesn't automatically or categorically go to that class of defendants, as in you know, it's. It's not. Yeah. Like, it's. It's not automatic or categorical that you get the benefit of these more lenient stacking rules. But what the dissenters are saying is, look, these particular defendants are not relying only on the stacking issue. They also cite other things as well in including, for example, rehabilitation or being model prisoners or what have you. And so they're saying that their particular situation, when you combine all these factors, including, but not limited to the sentencing disparity, their particular case, is, quote, extraordinary and compelling. And so what the dissenters are saying is district judges should conduct an individualized analysis of whether extraordinary and compelling reasons exist in an individual defendant's case. And as part of that individualized analysis, they can consider whether there's a disparity, meaning would this defendant have gotten a much more lenient sentence just for the accident of time? So I think there is a textual argument on the dissent side, too. As a policy matter, you can definitely see why the dissent is sympathetic. Just because of what I said. The. The defendants here received vastly longer sentences. And these are not capital cases. These are bank robberies. Very bad, or armed robberies, I guess I should say. But nobody died. And yet these defendants are getting a. A near life sentence and a life sentence.

[Sarah Isger]

Well, David, when we get back, we're going to talk about sex in the champagne room, or, as it were, in the martini room. Okay, David, if there were any reason to have David Latt on your podcast, surely it would be the next topic we need to discuss. I mean, this is, after all, Article three Groupie from underneath your robes. Live and in person. And on February 11, the Judicial Council of the 11th Circuit published an order. A federal district court Judge in the 11th Circuit engaged in an extramarital affair with a law enforcement officer and in the course of the affair, had sexual intercourse in the subject judge's office during work hours and within hearing distance of the judge's clerks. In the end, the counsel issued a private reprimand rather than a public reprimand, and the identity of the judge is not disclosed. The judge had to issue an apology to the law clerks in question and will not be eligible to be Chief judge. Josh Blackmon over at Reason did some really bordering on creepy sleuthing work to make an educated guess as to who this judge is. It appears that Fani Willis, yes, the prosecutor in the Donald Trump Georgia election case, who won reelection for state's attorney and then was removed from the case for an affair with her subordinate, that she had hired Onto the team. It looks like it was at that party that the martinis were served, which is mentioned throughout the judicial opinion, and the judge was attending that Fani Willis party. And I guess, David Latt, there's just something a little bit. It says that this judge is friends with Fani Willis for a long time. Doesn't identify Fani Willis, but it is clear that it is that party due to the date, the martini glasses, et cetera. I just have to think, like, if your friend just got in a huge amount of trouble for having sex with a coworker so much that it then resulted in a presidential candidate's case being dismissed that you are removed from the case, you would think that your bestie would maybe not do the exact same thing. But, David, I mean, I want your thoughts on all of it, I guess. But really, for the purposes of this podcast, I want to talk about judges holding each other responsible and what the limits are on that and whether, you know, is this something that Congress's impeachment power alone is intended to fix? Because we haven't seen a lot of that. I mean, there have been other very badly behaving judges, including the Alaska judge who was also found to have sexually harassed law clerks and had a relationship with a law clerk. That judge wasn't impeached, although it also wasn't a private reprimand in that case. I don't think it was. Right, David. That was a public reprimand.

[David Latt]

Yeah, I believe that was a public reprimand, yes.

[Sarah Isger]

But nevertheless, judges disciplining other judges, is it failing at this point?

[David Latt]

So I think that there is a good argument that it. It is, because I think that this particular punishment was too light. Just for a little background for readers and I, the law in question that sets up these misconduct proceedings for judges is the Judicial Conduct and disability act of 1980, and it allows anyone to file a complaint against a judge. In this case, it appears the judge's law clerk, one of the judge's law clerks, filed a complaint.

[Sarah Isger]

Can you imagine typing that up, by the way? Hi. I have reason to believe that my judge has been having sexual intercourse in chambers, because I can hear it through the walls.

[David Latt]

Exactly. That is a little crazy. So when that happens, there's a whole process, but in general, it will first go to a council for each circuit that deals with these issues, and then it can ultimately go up to the Misconduct Disability Type Committee of the Judicial Conference of the United States, which is sort of like this governing body for the federal judiciary. So in this case, it was A private reprimand. But Josh Blackmon and this investigative outlet called Marco Polo. And just today, earlier today, Bloomberg have reported that the judge in question is Judge Eleanor Ross of the Northern District of Georgia, who was a former colleague of Fani Willis. And the reason Fani Willis is relevant here is one of the other ethics charges is that Judge Ross attended a partisan political event, namely, an event for Fani Willis, when judges are not supposed to attend partisan political events. Events. So the shout out to Fani Willis was not just gratuitous or something, it was because one of the charges against this judge was attending a partisan political event. So, yeah, I think this is just way too lenient. The Legal Accountability Project, which is this organization founded by a former clerk named Elisa Schatzman, which tries to essentially advocate for stronger workplace protections for clerks, issued a very strong statement about this, and I think I largely agree with it. She said, this is their statement. The misconduct this judge committed, having sexual relations with a law enforcement officer in chambers in earshot of clerks, and lying to the chief circuit judge and chief district judge about it, strikes at the heart of judicial integrity and, and destroys public confidence in an impartial, ethical court system. So let me just flag one thing from Elisa's statement or the Legal Accountability Project's statement. She lied to the chief judge of both the district and the circuit, this being 11th Circuit Chief Judge Pryor, because when this complaint came in, they essentially notified her and said, what do you have to say? And initially, Judge Ross vociferously denied it. Then they had to expend judicial resources and hire outside counsel to conduct an investigation. And when they got the receipts, she basically said, okay, yeah, you got me. I did these things. And so I think you could argue, look, the sex is salacious and everything. And this is why something in the federal judiciary shows up in the New York Post. But look, I think that lying to your chief district judge and then to the chief judge of the circuit when confronted with a complaint, I think that's really, really problematic. And I think she should have at least gotten a public reprimand for this. The COVID up may be worse than the crime here. The idea of you're a judge, you are basically relying on the testimony of people who are swearing, you know, swearing under oath to tell the truth. And you can't tell the truth. Granted, I believe it was an informal interview or maybe it was in an email or something. She wasn't necessarily being deposed.

[Sarah Isger]

Yeah, you shouldn't have to be under oath, though. You should be telling the truth. At all times, especially when you are asked a question about a complaint that alleges something. Again, I take your point that it's not, like, serious. It's serious in terms of workplace, though, right? Not serious in terms of the law. But like your clerk is saying, you're having sex in chambers. It's been reported that you attended a partisan event. Did you? No, no, definitely not. Like, oh, there's pictures. Oh, we actually had to. I mean, we'll get into the details of all of that, but like. So, David, do you think that Congress should be impeaching more judges?

[David Latt]

So I do probably think Congress should get involved here more because one. But it's weird sometimes this act may go too far. So, for example, this same Judicial Conduct and Disability Act, I think personally, if you ask me, has been weaponized against Judge Pauline Newman of the Federal Circuit. She is very elderly. Granted, she's in her late 90s, but I've spent hours with her. I had her on my podcast. She is sharp as a tack. But I think there are some colleagues of hers who maybe have some issues with her views on certain cases or her general approach to the court, and they essentially use this act to say, look, we're suspending you from hearing cases. And she hasn't been able to hear cases for years now, even though she still has a presidential commission on her wall. Nobody impeached her, so she's been basically booted from the bench, even though no one ever impeached her. And then this judge who seems, you know, who has admitted to pretty serious conduct, she was able to just kind of go on with her bad self and without even the public shaming, because this was a private reprimand. So the Judicial Conduct and Disability act may be both too harsh and too lenient, depending on, you know, whose perspective you have. And I think one common complaint that is made about the judicial disciplinary setup is, look, it is judges passing judgment on fellow judges, and these are their friends, often, or colleagues. Not literally. You have to recuse if you're friends with the subject judge. The judge in these proceedings is always the subject judge, especially if it's anonymous. So, yeah, if you have a friendship with a subject judge, fine, you have to recuse. But look, judges have an interest in protecting other judges because who knows? Judge not lest you be judged. They may someday be in the hot seat for judicial discipline. So they don't want to set up a system or don't have incentives to set up a system where small infractions get big penalties. They don't Want that. So I think what a lot of people have complained about with respect to digital judicial misconduct is it really amounts to the proverbial slap on the hand.

[Sarah Isger]

What if, David Latt, we solve this problem right here. The reason that we don't have an enforceable ethics code for the Supreme Court is because we can't figure out who would enforce it. So what if we right now create a commission of retired, you know, judges who went senior but no longer hear cases. They are appointed to that commission by the Chief Justice. That commission now hears all the complaints from everywhere and has the ability and resources to investigate and everything else. It is now a fully stood up Article 3 Commission, and it cannot recommend or force recusals from Supreme Court justices. It can only issue, you know, sort of thumbs up, thumbs down on ethics complaints, you know, disclosures and ethical violations, for instance. But it can't say like, and therefore you must recuse. It obviously can't force people to resign from the bench either. They have life tenure under the Constitution, only Congress can remove them through the impeachment power. But to actually have a commission, separate and apart, that does this basically for a living, instead of having all of our judges who go senior, you know, potentially continue to hear cases in their courtroom, that's not a huge value add to the judiciary compared to this, because it cuts both ways. Here we have a validated complaint. We needed an independent commission to actually look into that and issue a public report on it. But also we have lots of nonsense complaints, and we need a independent commission to say that they're nonsense too. And that protects the judiciary as well in both directions. It protects them from the bad apples, and it protects them from the bad apple complaints that aren't meritorious. And I feel like we suffer from both ends of the candle right now, and it feels pretty easy to fix.

[David Latt]

Yeah, I like your idea also, because it does reduce also the potential for conflict. One of the issues in the case of Judge Newman is her discipline was essentially voted on by her own colleagues. And she doesn't always get along with her colleagues, to be honest. They call her the great dissenter of the Federal Circuit. So it's people that she has substantive doctrinal disagreements with that then passing on whether or not she's fit to sit on cases. And, oh, shocker, they say she's not,

[Sarah Isger]

which again, is pretty crazy, just from an Article 3 standpoint that she has life tenure, but she can't hear any cases based on the opinions of other judges.

[David Latt]

Yikes, that's. That's a bit Crazy now. And also you do have these, you know, tricky situations where Judge, Chief Judge Pryor and Judge Ross, they're, they're in the same circuit. Maybe they rub shoulders at the annual judicial conference or maybe they've crossed paths here or there. It probably would be better. Again, I have no reason to question the integrity of Chief Judge Pryor, as you've talked about on the podcast. He's great. But it probably would be better to have this body of senior judges that you describe from around the country who have no ties whatsoever to any particular judge because right now this is handled intra circuit. And so that's why you have circuit judges getting involved with say, other circuit judges or judges whose cases are getting appealed to them, like district judges or bankruptcy judges or what have you. So I like your idea.

[Sarah Isger]

I nominate Judge Former, well, soon to be former Chief Judge Jeff Sutton to head up this commission and hope that it can happen forthwith. I also hope that this judge who, you know, I've, I've read the arguments for why it's Judge Ross and Bloomberg has reported that it is. So, you know, presuming that that is all accurate information, she needs to resign in about a week. I would argue now that this is public, as you say, David, not even because of the underlying conduct, which actually is pretty gross and egregious, but because of the lying and forcing them to expend judicial resources to do an investigation for her, then only to come forward once it was pretty much irrefutable. That would be hard to appear in front of that judge and think you are getting a fair shake at all. Like if she can't tell the truth, why should you have to tell the truth? And it undermines again, the role of the judges, the respect we should have for the courtroom and for judicial officers of the court. And it's just all around. Not been a great week for the rule of law, David. Not been a great couple weeks. I'll be honest. Not loving it.

[David Latt]

Yeah. Yeah. No. And you know, by the way, the report, the 22 page report about Judge Ross or the subject judge, I guess I should say, because she isn't identified in there. It's very interesting. It identifies other problems too. For example, one of the claims is that she would yell at or treat abusively her law clerks and also not adequately supervise them. And the complaint basically says that according to these clerks and the, the investigative body talked to about a half dozen of them, she would do the criminal cases herself. She's a former prosecutor, but essentially she kind of ignored her civil docket is the argument. She said that she would edit only 30 to 70% of civil orders in her chambers, meaning that, you know, 70 to 30% were going out the door with no edits. And the law clerks told the investigators, look, we're just fresh out of law school. We feel this is too much responsibility. Yeah. We want, you know, a judge actually guiding us and substantively signing off. And again, the allegations in this and these allegations were not vindicated by the committee, so. Fine. But there were additional allegations here, including that she doesn't adequately supervise her clerks. And I think that could. That's a real problem if true.

[Sarah Isger]

Well, David Lott, we're gonna leave it there on this episode of Advisory Opinions. David French will be back for for the next episode because we only allow David's on advisory Opinions. Thank you so much for joining us, David. And you can find all of David's work at Original Jurisdiction, the amazing newsletter and podcast. And of course, he is married to the inimitable Zach Shimtaub, executive editor of SCOTUS Blog. So we're keeping it all in the family here at Advisory Opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can, you can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign [e-mail] join and if you use promo code AO, you'll get one month free. And help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium [e-mail] premium. That'll get you an ad, free feed and early access to all episodes. Two gift memberships to give away access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email [e-mail] we read everything, even the ones that say, David's right. That's gonna do it for our show today. Thanks so much for tuning in. We'll see you next time. Some follow the noise. Bloomberg follows the money. Because behind every headline is a bottom line. Whether it's the funds fueling AI or crypto's trillion dollar swings, there's a money side to every story. And when you see the money side, you understand what others miss. Get the money side of the story. Subscribe [e-mail].