Advisory Opinions: "Firing Squad vs. Suffocation"

Podcast: Advisory Opinions (The Dispatch)
Episode Date: October 28, 2025
Hosts: Sarah Isgur (A), David French (B)

Main Theme & Overview

This episode tackles a heavy set of legal issues, focusing on the death penalty and the Eighth Amendment, particularly in the context of new execution methods (notably, Alabama’s use of nitrogen gas). The hosts also debate the merits and drawbacks of the spoils system, evaluate the meaning and future of "horizontal stare decisis" in federal appeals courts, provide updates on the National Guard deployment litigation, and discuss the dynamics of Supreme Court advocacy before closing with listener questions about executive discretion on immigration.

The episode stands out for its candid, often philosophical exchanges on constitutional interpretation and the human realities underlying legal systems.

Key Segments & Insights

1. Supreme Court & National Guard Litigation Update

[00:01–04:31]

• SCOTUS Tariffs Case Preview:
  Sarah highlights live coverage plans for the Supreme Court’s upcoming argument on tariffs, with prominent legal guests lined up.

• Portland National Guard Stay:
  The Ninth Circuit issued an administrative stay on a previous panel opinion regarding National Guard deployment in Portland.

  • Sarah finds this "slightly unusual" ([03:39]), suggesting the stay could reflect doubts about the prior opinion.
  • David tempers this: “[It] does not then flow from that that all modern methods are going to be equally acceptable” ([10:01]).
  • Both agree the stay’s legal significance is limited, but the process is unusual and the "merits" remain uncertain.

2. The Death Penalty and the Eighth Amendment

[04:31–16:32]

• Focus: Execution methods—firing squad vs. nitrogen gas—and the constitutional definition of "cruel and unusual" punishment.
• Justice Sotomayor’s Dissent from the denial of certiorari (read aloud by Sarah) frames the case:

  “Now imagine for that entire time you are suffocating ... you are strapped to a gurney with a mask ... pumping your lungs with nitrogen gas ... That is what awaits Anthony Boyd tonight ... For two to four minutes, Boyd will remain conscious while the state of Alabama kills him in this way ... This court thus turns its back on Boyd and on the Eighth Amendment’s guarantee against cruel and unusual punishment...” ([05:00])

• Historical Perspective:
  • Cites Trop v. Dulles (1958): the meaning of the Eighth Amendment "must draw its meaning from the evolving standards of decency" ([07:02]).
  • Sarah emphasizes the inherent value judgments in defining “cruel and unusual,” questioning whether methods become more/less constitutional over time as decency standards evolve.
• Philosophy of Execution:
  • David: There’s no perfect way to execute, but critiques nitrogen hypoxia as “uniquely excruciating” ([11:38]).
  • David on legality: "As long as the death penalty is a constitutional method of punishment, there has to be a method ... that's constitutional" ([12:31]).
  • Both suggest a firing squad is least likely to be unconstitutional because it is fast, if grim.
• Critique of Lethal Injection & “Sanitized” Death:
  • Sarah: "The entire foray into lethal injection...will be something that future generations will look back on as a huge mistake, if not the definition of cruel and unusual" ([14:13]).
  • David: The attempt to make executions less violent is “really vibes based. We're not like that. ... No, but if you're killing people, you're like that” ([15:19]).

3. Horizontal Stare Decisis

[17:36–25:19]

• What is it?
  In the U.S. appeals courts, a three-judge panel is bound by prior circuit decisions (unless reversed en banc).
• Judge Oldham’s Critique:
  • Sarah highlights Oldham’s argument (summarized by Josh Blackman): Panel precedent grants a "first mover" advantage and sometimes binds later panels to suboptimal or poorly reasoned law ([18:39]).
• Debate:
  • Sarah wavers, finding Oldham’s arguments persuasive but notes en banc review is a frequent check (especially in bigger circuits like the Fifth and Ninth).
  • David’s “vibe check”: The vast majority of cases are routine—“the law is a lot more stable ... than you might get from listening to a legal podcast” ([21:45]).
  • David holds that predictability is a key rule-of-law value, and the en banc mechanism suffices as a corrective ([23:50]).

4. The Spoils System: A Listener’s Historical Defense

[25:19–35:02]

• Listener Mark’s Points:
  Argues that the spoils system (patronage appointments) had potential upsides:
  • Boosted voter participation
  • Strengthened political parties
  • Encouraged moderation via job offers to political foes
  • Reduced wasteful patronage compared to pork-barrel projects
  • Incentivized competence (arguably)
  • Corruption claims may be overstated
• Sarah’s Reaction:
  Persuaded about moderation, less so about inherent competence—contemporary national politics makes local accountability less likely ([29:23]).
• David’s Counterpoints:
  • The spoils system is “absolutely, positively saying no to meritocracy” ([30:07]).
  • Draws on personal experience from the South: Spoils-based public employment fosters not only patronage in jobs, but also in actual delivery of government services.
  • Argues that relying exclusively on political loyalty erodes expertise, especially in agencies with critical, specialized missions.
  • Predicts reintroducing the spoils system now would deepen polarization and erode trust.

5. Supreme Court Oral Advocacy: "Who Should Argue the Tariff Case?"

[35:02–42:08]

• Context:
  The choice between Neil Katyal (experienced, high-profile, left-of-center) and Michael McConnell (conservative, originalist scholar) to argue a critical Supreme Court tariffs case.
• Argument:
  • Sarah: In a Court "who speak fluent originalism... should you really only be considering an advocate whose primary language is originalism... or are bilingual with no accent" ([37:49]).
  • David: “A good lawyer knows the law; a great lawyer knows the judge.” Personal relationships and advocacy style are huge—but in a big case with a clear legal question, oral argument rarely changes minds ([38:43]).
  • On originalism: Left-of-center lawyers are increasingly fluent, but the Court’s current composition makes true “native speakers” more effective.
• On Advocacy Style:
  • Sarah: Charismatic advocates can be less effective if their style prompts “oppositional” responses from justices; sometimes a “helpful, explanatory” style works better ([42:08]).

6. Executive Power, Immigration, and the "Biden vs. Trump Border"

[42:08–54:23]

• Listener’s Question: How can Trump “fix” the border via executive authority when the hosts previously argued that only Congress could effect a solution?
• Sarah’s Data:
  A UN study found a 97% reduction in northbound migration under Trump, with 50% of potential migrants deterred solely by a belief they could not enter the U.S. ([50:01]).
• Analysis:
  • David draws a distinction between a “patch” (what the President can do) and a “fix” (what only Congress can cement into law):

    “Presidents have been able to do patches or take patches off for a very long time ... but you have to have Congress to fix it. Otherwise ... the border is up for grabs every presidential election...” ([47:56]).

  • Sarah: Much of Trump’s “success” is rhetorical and rooted in belief; Biden’s inability to persuade on border enforcement generated a “non-virtuous cycle.” The numbers indicate effective deterrence, not a structural fix ([50:01]).
• Conclusions:
  • No clear legal violation by Trump on border actions; Biden lacked both the rhetorical force and structural capacity to match.
  • Both warn: this dynamic signals Congressional abdication—major national policy is now at stake in every presidential race ([53:28]).

Notable Quotes & Moments

• On Lethal Injection and Capital Punishment:
  Sarah: “The idea that we thought we could have a clean method of death ... that it could be silent, that would relieve us of any of sort of the barbarism ... that's clearly wrong and frankly it's wrong morally as well.” ([14:13])
• On the Spoils System:
  David: “If we're going to talk about the spoil system, you just have to get absolutely positively clear as you are saying absolutely no to a meritocracy.” ([30:07])
• Originalism in Supreme Court Advocacy:
  Sarah: “Should you really only be considering an advocate who is at least ideally their primary language is originalism, and if not, they are bilingual with no accent?” ([37:49])
• Presidential Power vs. Congressional Inaction:
  David: "Presidents have been able to do patches or take patches off ... but you have to have Congress to fix it. Otherwise ... every major piece of American policy becomes up for grabs every presidential election." ([47:56])

Detailed Timestamps for Major Topics

• 00:01–04:31 – Supreme Court update & National Guard stay explained
• 04:31–16:32 – Death penalty, Eighth Amendment, Sotomayor’s dissent, method-of-execution debates
• 17:36–25:19 – Horizontal stare decisis: should circuit panels be bound by prior panel decisions?
• 25:19–35:02 – Listener deep dive: the case for the spoils system (historically and today)
• 35:02–42:08 – Tariff case: who should argue before SCOTUS? (Katyal vs McConnell)
• 42:08–54:23 – Executive action on border enforcement: legal powers, rhetoric, and policy lessons

Flow, Tone, and Style

The hosts blend rigorous legal explanation with frank, often witty commentary and flashes of philosophical reflection. In a somber and meticulous exploration of the Eighth Amendment, Sarah and David bring humanity to a grim legal subject—handling tough questions on state-sanctioned death with both gravity and intellectual honesty. When less weighty, their back-and-forth is candid (“I was fully radicalized” – Sarah on horizontal stare decisis [18:39]), and listeners are encouraged to engage critically with the law’s complexities.

For Listeners Who Haven’t Tuned In

This episode will appeal to legal professionals (and anyone interested in philosophy of law, separation of powers, or the realities of American government) by offering both a close reading of current cases and rich, evergreen debates. The blend of granular legal mechanics and philosophical rumination is signature Advisory Opinions—equal parts teaching, opinion, and spirited conversation.