Advisory Opinions: "Must and May"

Podcast: Advisory Opinions, The Dispatch
Hosts: Sarah Isgur & David French
Release Date: January 15, 2026

Episode Overview

In this episode, Sarah and David tackle the nuanced question currently before the Supreme Court: May states ban transgender participation in women’s sports under the Equal Protection Clause or Title IX? They meticulously break down the three-and-a-half-hour oral argument, explore three unanimous or near-unanimous Supreme Court decisions, debate whether an attorney’s signature block can trigger court sanctions, revisit the complexities of a high-profile Minneapolis police shooting, and discuss whether federal judges should be allowed to carry concealed firearms. Along the way, they share personal reflections on legal process, professional conduct, and the tangled web between law and politics.

Main Topic: May States Ban Transgender Participation in Women’s Sports?

The “Must” vs “May” Legal Question ([00:01]-[04:09])

• Context: The episode opens with Sarah distinguishing between two legal questions: whether states may ban transgender participation in women’s sports (the current case), and whether they must (an unanswered but arguably more interesting legal issue).

  • "About 27 states... have chosen to ban trans participation in women's sports. The other 23 have not. So both the may and the must questions are going to be relevant for about half the country." (Sarah, [01:45])

• Oral Argument Rundown: The Supreme Court’s hearing lasted over three hours, and featured vocal engagement from all justices.

  • "This was a really long argument. Remember back in Scremetti... we never heard from Justice Gorsuch... Here we heard from all the justices, though some more than others." (Sarah, [03:56])

Key Takeaways & Insights from the Argument

The Definitional Elephant in the Room ([04:09]-[07:32])

• David’s “Stumped” Takeaway:

  • "I was absolutely, for the life of me, stumped why this went so long... The difficulty of the plaintiff's case here was really illustrated when the ACLU—or when the advocate for the plaintiffs—came in without being able to specifically define what a man or a woman is." (David, [04:18])

• Race vs. Sex Distinction:

  • David highlights the legal contrast: "Title 6 prohibits discrimination on the basis of race in educational activities. And Title IX prohibits discrimination on the basis of sex... You must have sex segregated sports teams to comply with the two statutes... It's the biology of it all that is the reason for the distinction, not the gender identity of it all." (David, [05:44])

Oral Argument Memorable Moments

• Alito’s “What is a woman?” Exchange ([07:32]-[11:52])

  • Sarah reads a highly circulated exchange:
    • Alito: "What does it mean to be a boy or a girl, or a man or a woman?"
    • Lawyer: "We do not have a definition for the court."
    • Sarah’s analysis: "That’s actually pretty good. It is the crux of their argument. I think they lose on that argument. But just dunking on the 'we don't have a definition for you here' misses... the rest of the legal argument." ([07:32])
  • Sarah on media soundbites: "This is why I don't want cameras in the courtroom because that's all that would play... when literally the next sentence tells you what the legal argument is." ([08:07])

• Idaho Solicitor General’s Pushback

  • Sarah details the government’s argument that constantly redefining the class (who is covered/excluded) makes it unworkably burdensome for the state. ([09:45]-[11:52])

Intermediate Scrutiny and Burdens

• Sarah's Framing:
  • "This is the whole legal argument... Whenever the state points to the fit in the statute, [plaintiffs] just redefine their class as only the people who are outside the fit..." ([11:01])
  • She argues the state's burden has a limit: "Surely there's a limit to the burden... think of all the testing the state would have to do..." ([11:35])

The “Must” Question’s Unresolved Complexity ([11:52]-[15:25])

• David on Statutory Interpretation:
  • "You’re dealing with a statute that requires sex segregation... they're coming in and saying, but it doesn't allow sex segregation for a very particular subclass... That is... a giant stretch." ([11:52])
• Sarah on Must vs. May Cases:
  • "I think Title IX may require banning trans participation in women's sports. But... we really have only had a few cases at the circuit level." ([14:27])
  • David adds: "[The must cases] are a lot stronger argument... than a case like this when it’s the opposite situation." ([13:52])

Broader Reflections

• Media/Culture Shift:

  • "Three years ago, even two years ago, this is wall to wall coverage... Now, this is, oh, oral argument before maybe tariffs come out." (David, [15:25])
  • Sarah: "I'm a little over the dunking on the definitional issue of, you know, what is a woman..." ([15:56])

• David explains why the definition matters here:

  • "It's a... we've got a constitutional provision here and a statutory provision that uses the word sex. And so we have to define our terms there. That's part of the whole process." ([16:58])

Supreme Court Decisions: Recaps & Analysis

1. Firearm Penalty Stacking – Barrett Case ([20:00]-[21:41])

• Issue: Can a defendant be charged under both 924(c) and 924(j) for a single act?
• Decision: No, they are alternatives, not cumulative offenses.
• Memorable Quote:
  • "I think it’s a plainly correct case... it's still one act and still one crime." (David, [21:41])

2. Case v. Montana: Fourth Amendment & Emergency Aid ([22:34]-[31:42])

• Facts: Police entered a home after a suicide threat heard over the phone; no crime suspected.

• Holding: The warrantless entry was reasonable under the emergency aid exception.

• Sarah quoting Kagan:

  • "The reasonableness standard means just what it says with no further gloss. And here it was satisfied because the police had an objectively reasonable basis for believing that a homeowner intended to take his own life and indeed may have already shot himself." ([27:28])

• Gorsuch Concurrence:

  • Emphasizes the common law foundations of the "emergency aid" exception.
  • Sarah: "This isn’t a judge made exception to the Fourth Amendment. This accords with the common law..." ([31:42])

3. Standing & Ballot Receipt Laws ([31:42]-[39:58])

• Context: Do incumbents have “standing” to challenge ballot receipt laws they dislike?

• The Split:

  • 5 justices: broad candidate standing;
  • 2 (Barrett & Kagan): standing if candidate spends money disputing ballots;
  • 2 (Jackson & Sotomayor): no standing via “spending for standing.”

• Memorable Analogies:

  • "Each runner in a 100 meter dash... would suffer if the race were unexpectedly extended to 105 meters. Whether a particular runner expects to finish strong or fall off the pace... The fastest to run 105 meters has not won the 100 meter dash." (Chief Justice, read by Sarah, [37:37])

• David’s Reaction:

  • "I’m just so stumped by this case... I would imagine that you would have as an initial early matter, the district court finds standing... and then the case just goes on from there." ([39:20])

Courtroom Conduct: What’s in a Signature Block? ([39:58]-[47:06])

• Issue: Can Lindsey Halligan use the title “U.S. Attorney” in her filings after a district judge ruled she lacked proper appointment?
• Sarah’s Comparison:
  • "Jack Smith continued to use the special counsel title in his filings and his signature block. And nobody that I saw accused Jack Smith of unprofessional conduct..." ([44:19])
• David’s Analysis:
  • "If you don't have a final binding determination on the merits... I do not believe it's professional misconduct for Halligan to hold herself out as U.S. attorney." ([41:44])
  • "The administration's language was ridiculously aggressive. It also might be the case that the judge is being a bit... persnickety." ([44:19])
• Real-World Advice:
  • "One of my goals when I was litigating was to smooth the road to rule for me... I try to be the most reasonable and accommodating person in the room." ([47:32])

Minneapolis Police Shooting: Law, Process, and Morality Revisited ([48:39]-[59:36])

• Meta-Discussion:

  • Sarah and David explore why legal questions are a “shared space” for disputing emotionally charged events, but recognize listeners may care more about the “outer shell” of human and institutional responses.

  • Sarah: "The legal question for me is often the way in which I feel like I can bring both sides to engage with the facts in a shared reality, because we have these processes and rules of engagement." ([51:13])

• David’s Salad vs. Salad Dressing Analogy:

  • "On advisory opinions, the legal question is almost always the salad. That's what this podcast is all about... regardless of all of the other things that are out there." ([51:13])

• Complexities of Officer Conduct:

  • "I believed the shooting was irresponsible and unnecessary, that there should be disciplinary action against the officer... but I wasn't willing to say on the available evidence that the shooting was criminal." ([53:18])

• Officer-Created Danger—A Legal Black Box:

  • "The officer created danger concept has some real ambiguity here. Legally, I think it has a lot less ambiguity morally, a lot less ambiguity professionally... the actual way in which officer created danger applies to the analysis is kind of up in the air." ([55:00])

Potpourri: Judges, Guns, and Attorney General Quotes ([61:43]-[68:01])

Should Federal Judges Be Allowed to Conceal Carry? ([61:43])

• Op-ed Recap: Two federal appellate judges support legislation for concealed carry by judges.
• David:
  • "Absolutely. That a federal judge... who is subject to an increasing threat environment... should be able to conceal carry... The last community of people in America who are likely to engage in impulsive firearm usage in public are federal judges." ([62:31])

The Attorney General’s Dilemma ([63:46]-[68:01])

• Sarah on Trump and AGs:

  • "The better an attorney is, the more process oriented they are. And that is in direct opposition to what Trump wants, which is someone outcome oriented. He can never find a great attorney general because by definition, they can't be a great lawyer." ([64:21])

• David’s Advice:

  • "If you are representing an opposing party and you have time, you have a competitive advantage... pay attention to those details." ([65:40])

• Clarification:

  • Sarah: "Trump can't find what he would define as a great attorney general because the people he's appointing keep being good lawyers, and therefore he doesn't like them as attorney general." ([68:01])

Notable Quotes (w/ Timestamps)

• David on the core distinction in the sports case:
  • "It's the biology of it all that is the reason for the distinction, not the gender identity of it all." ([05:44])
• Sarah on courtroom soundbites:
  • "This is why I don't want cameras in the courtroom because that's all that would play... when literally the next sentence tells you what the legal argument is." ([08:07])
• Chief Justice, via Sarah, on election standing:
  • "The fastest to run 105 meters has not won the 100 meter dash." ([37:37])
• Gorsuch, via Sarah, on common law and Fourth Amendment:
  • "From before the founding through the present day, the common law has generally permitted a private citizen to enter another's home ... to avert serious physical harm." ([27:28])
• Sarah, on Attorney General selection:
  • "He can never find a great attorney general because by definition, they can't be a great lawyer." ([64:21])
• David on process in law:
  • "Process keeps you breathing if you are somebody who's on trial for your life." ([65:40])

Episode Structure & Timestamps

• [00:01] – [18:16]: Introduction & Main Supreme Court Case (transgender participation in women’s sports under Title IX and Equal Protection)
• [20:00] – [39:58]: Discussion of three Supreme Court opinions (Barrett firearms case, Case v. Montana, candidate standing in elections)
• [39:58] – [48:39]: Professional conduct: court signature disputes (U.S. Attorney debate)
• [48:39] – [61:43]: Minneapolis shooting redux and legal standards for officer conduct
• [61:43] – [68:01]: Potpourri: armed judges, Trump's AG quandary, process vs. outcome focus in legal practice

Conclusion & Upcoming Topics

The hosts tease a surge of significant Fifth Circuit cases (“en bonkapalooza”), preview a discussion on whether the courts or Congress are to blame for institutional gridlock, and promise plenty more legal deep dives—including issues as wide-ranging as Halloween parties, Satanists, and sleeping attorneys.

For listeners who want a lucid, layered, and sometimes lightly irreverent deep dive into how law, culture, and politics collide in American courts, this episode demonstrates Advisory Opinions’ appeal: balancing technical, statutory, and constitutional nuance with broader ethical and societal context.