Advisory Opinions — “Dorm Room Originalism”

The Dispatch | September 25, 2025

Hosts: Sarah Isgur & David French

Episode Overview

In this rich, legally-dense episode, hosts Sarah Isgur and David French dissect several hot legal topics, including a dramatic new Supreme Court grant regarding the future of the Federal Trade Commission (FTC) and the potential demise of the seminal Humphrey's Executor decision. They analyze a set of major federal appellate cases about executive branch power, civil service, and LGBT rights under Title VII. The pair also tackle Jill Lepore’s Atlantic article, “How Originalism Killed the Constitution,” before debating the ongoing battles between originalists and their critics.

Key Discussion Points & Insights

1. Supreme Court Certiorari Before Judgment: The End for Humphrey’s Executor?

[01:57–07:23]

• Background: The Supreme Court granted certiorari before judgment in a case involving the removal of FTC Commissioner Rebecca Slaughter.
• Procedural Significance: Sarah outlines how cert before judgment bypasses the circuit courts due to identical issues on both the merits and the emergency stay, allowing the Supreme Court to resolve urgent, teed-up constitutional questions more rapidly.
• Key Questions Presented:
  1. Does Congress’s restriction on removal of FTC commissioners violate separation of powers, and should Humphrey’s Executor (1935) be overruled?
  2. Can federal courts prevent removal from public office via equitable or legal relief?

Notable Exchange:

• Sarah: “Just by the tone, the answer is yes, Humphrey's is going to die a second time... that’s why it’s Humphrey’s Executor—it’s the executor of his estate!” [06:41]

• David: “I’m totally with you that it looks like Humphrey’s Executor is gone.” [07:23]

[07:32–17:06]

• The hosts note how broad the questions are, particularly #2, which may have even more far-reaching consequences than the universal injunction cases argued previously.
• David theorizes that the Court may be exploring whether equity is available only when legal remedies, like back pay, are inadequate—reinforcing a critical distinction between private and public employment law.

Quote:

• David: “What you do when somebody has lost their job is that you give them the financial compensation for it and reinstatement where provided for by law... But the actual loss is not just about a paycheck—fulfilling a public role as defined by law is different.” [11:35–14:27]

[14:27–23:09]

• Sarah highlights the Department of Justice’s argument: Even if Humphrey’s Executor applied, the court’s reinstatement order overstepped, because Article II renders the President’s removal power conclusive—only back pay, not reappointment, is traditional.
• The hosts debate the meaningfulness of back pay as a remedy for wrongful removal from public office and its implications for separation of powers, referencing historical context post-Gilded Age and the rise of the civil service.

Memorable Moment:

• David: “If the answer to that question becomes yes, this isn’t unitary executive anymore. This is—I don’t even know what to call it, quite frankly...” [17:06]

2. “Dorm Room Originalism” v. Institutional Stability

[25:43–29:08]

• David coins “dorm room originalism” to describe surface-level adherence to the original meaning that disregards a century of legal and institutional evolution.
• The hosts debate how originalism should respond to layers of bureaucracy, civil service reforms, and generations of precedent vs. “burn it all down” approaches.

Notable Quote:

• David: “What dorm room originalism says is ... I figured out the original public meaning ... then you look at the massive edifice of a hundred years of development ... Well, it’s all got to go.” [25:48]

Sarah (on public service):

• “There cannot be independent people who answer to no voters. ... I come down pretty hard on the unitary executive side.” [19:00–23:09]

3. Jill Lepore’s Atlantic Attack: Did Originalism Kill the Constitution?

[29:55–39:42]

• Sarah reads portions of Lepore’s article. Lepore blames originalism for shifting the focus from Constitutional amendment toward Supreme Court appointments.
• Both hosts agree the death of the amendment process isn’t originalism’s fault; the activist Warren and Burger Courts’ creation of new rights outside Article V is the real culprit.

Notable Quotes:

• Sarah: “How exactly was a Republican administration supposed to have Congress adopt its position on abortion? ... the whole point was [Congress] couldn't—because it had been constitutionalized. That's the dumbest...” [32:03]

• David: “If you want to enshrine the right to abortion, you need a constitutional amendment. It cannot be the case that...you’ve got to have a constitutional amendment to reverse court precedent.” [34:26]

• The discussion shifts to how deeply the originalism debate is wrapped up in Roe v. Wade and Dobbs.

  • David: “Roe was maybe one of the very few questions that originalism makes pretty easy.” [37:29]
  • Sarah: “It is about abortion, but maybe not for all the reasons the left thought.” [36:05]

4. Circuit Court Roundup: Unitary Executive, Transgender Rights, Alien Enemies Act

D.C. Circuit: Register of Copyrights and the Executive Branch [41:55–49:04]

• Perlmutter, Register of Copyrights, was fired by the President after an AI report; question is whether Library of Congress officials are in the executive branch.
• Majority says no, but Walker’s dissent (which Sarah praises) points to decades of D.C. Circuit precedent holding the Register’s role is executive.

Sarah:

• “That’s like a mic drop to me ... The Librarian is appointed by the President, removable by the President ... the Library is undoubtedly a component of the executive branch.” [43:48]

David (big picture):

• “It’s almost like cases from SCOTUS involving trans issues, abortion, gun rights, etc., are like small ball ... compared to unitary executive theory.” [43:48]

11th Circuit: Transgender Deputy, Insurance, and Title VII [49:04–57:01]

• Transgender sheriff’s deputy denied coverage for gender-confirming surgery, insurance policy exclusion challenged under Title VII.
• 7–6 court upholds exclusion, relying on Scrametti (14th Amendment equal protection) and noting plan covers other gender dysphoria treatments.
• David and Sarah parse the tension between Bostock (statutory) and Scrametti (constitutional), agree the outcome aligns with current doctrine but see potential legal evolution.

Sarah:

• “I would like to see another case like Bostock come through ... and see whether Bostock gets cabined to the most narrow set of facts…” [53:24]

David:

• “If you start engaging in punitive actions against individuals on the basis of transgender status, you’re going to start to raise those kinds of 14th Amendment concerns.” [55:52]

5th Circuit: Alien Enemies Act & Presidential Power [57:01–64:21]

• Venezuelan plaintiffs challenge use of Alien Enemies Act to detain them; majority finds no “invasion or predatory incursion.”

• Judge Oldham dissent argues presidents’ war powers under the act should be nonjusticiable and conclusive—a view both hosts strongly dispute.

• David: “If a president is going to do something that has no precedent, it's not a defense ... to say there’s been no similar intervention in history.” [60:49]

• Both agree the statute’s language ("when there is… AND the President makes proclamation") allows judicial fact-finding and is not a blank check for the executive.

Notable Quotes & Memorable Moments

• “This is not a drill.” — Sarah, on the seriousness of the Supreme Court’s second question.
• “Dorm room originalism.” — David’s pejorative for overzealous, ahistorical constitutional literalism. [25:43]
• Sarah, on the amendment process: “Originalism is the reaction to the death of the amendment process.” [35:07]
• David, on institutional history: “You build up an entire web of checks, balances, precedents, etc., over more than 100 years.” [25:48]
• Sarah, on the current legal moment: “Alright, well, that’s the Fifth Circuit for you. That one might be going back up. Or not.” [64:21]

Timestamps of Key Segments

• [01:57] — Supreme Court cert before judgment in the FTC removal case; procedural mechanics and predictions.
• [09:47] — Breadth of the Court’s second question: federal court authority to prevent removals.
• [14:27] — DOJ brief’s argument on judicial authority and the significance of mandamus.
• [19:00] — Civil service: the evolution of protections and the progressive era’s effect.
• [25:43] — “Dorm room originalism” defined; debate over unwinding historical reforms.
• [29:55] — Jill Lepore’s article and critique of originalism.
• [43:48] — D.C. Circuit precedent: is the Register part of the executive? Walker dissent.
• [49:04] — 11th Circuit: transgender care, Title VII, and the impact of recent SCOTUS cases.
• [57:01] — 5th Circuit: interpreting the Alien Enemies Act and judicial vs. executive power.
• [64:21] — Hosts’ consensus on the reach of presidential power under the Alien Enemies Act.

Conclusion

This episode underscores how debates about the separation of powers, originalism, and the administrative state are reaching critical junctures in federal appellate courts and the Supreme Court. French and Isgur blend legal erudition, historical context, and some sharp wit, making a dense legal landscape both navigable and engaging.

For those seeking a deeper dive into the cases themselves or the underpinnings of originalism, this episode is required listening—offering both finely tuned legal analysis and broader commentary on what’s at stake for the Constitution and the future of American governance.